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I'm hardly the first person to make this point, but it's one that bears repeating: While conservatives are preparing to pack the Supreme Court and the rest of the federal judiciary with right-wing judges who will seek to overturn Roe v. Wade, their real aim is a stealth campaign against the New Deal interpretation of the Interstate Commerce Clause (ICC).

Don't get me wrong: Roe and other hot-button social issues matter a great deal. But the power to destroy the ICC has much more far-reaching consequences. So it's nice to see a contributor on the NYT editorial page get it:

If the Supreme Court drifts rightward in the next four years, as seems likely, it could not only roll back Congress's Commerce Clause powers, but also revive other dangerous doctrines. Before 1937, the court invoked "liberty of contract" to strike down a Nebraska law regulating the weight of bread loaves, which kept buyers from being cheated, and a New York law setting a maximum 10-hour workday. Randy Barnett, the law professor who represented the medical marijuana users, argues in a new book that minimum wage laws infringe on "the fundamental natural right of freedom of contract."

In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional.

Right now, you might say, if the Supreme Court draws down Congress's power, that wouldn't be so bad - after all, the Republicans are in charge. But as the editorial indicates, the consequences would be much more far-reaching. All kinds of past legislation could be jeopardized - the kinds of programs and laws that only the national government has the ability to enact, like Social Security. And when the Democrats are back in power, they might find a Congress that is utterly neutered.

Unfortunately, this is an issue which doesn't capture the public imagination, or even the interest of most liberal activist groups. I'm not sure there's much we can do, except perhaps oppose the worst of these "Constitution-in-Exile" type judges, and expose them for what they are:

The attacks on the post-1937 view of the Constitution are becoming more mainstream among Republicans. One of President Bush's nominees to the United States Court of Appeals for the Ninth Circuit, Janice Rogers Brown, has called the "revolution of 1937" a disaster.

Every time someone like this comes up for a nomination, we need to say that they want to make Social Security illegal. Not get rid of it - make it illegal. They want to make the minimum wage illegal. They want to make clean water laws illegal. This is not a mis-statement or exaggeration of their position. This is exactly what they propose.

I'm going to conclude with a final thought. The editorial - which I strongly encourage you to read - leaves out some of the backstory to the "revolution of 1937." FDR and the Congress had repeatedly passed all types of legislation to combat the Depression, as part of the New Deal. The Supreme Court struck these laws down again and again.

Finally, in his second term, Roosevelt was able to appoint new justices with a modern view of Congressional power. From 1937 on, the court upheld all manner of New Deal legislation, with Wickard v. Filburn being the high-water mark of the ICC power.

My constitutional law professor asked whether the post-1937 court was "better" than the pre-1937 court - not on political grounds, but on principle. He answered his own question by saying "Yes." His reason was simple: The post-1937 court wasn't requiring Congress to act - it didn't say that various New Deal legislation was obligatory. Rather, it allowed the democratically elected Congress and President to legislate over the economy as they saw fit.

The pre-1937 court, by contrast, imposed its own judgment on what was appropriate for the economy, in an enormous range of cases. So do we want an unelected and unaccountable Supreme Court which decides national economic policy, or do we want to reserve that power to our elected represenatives in Congress?

The answer to me couldn't be more clear. It's also clear to movement conservatives and the Federalist Society. Unfortunately, they've reached the exact opposite conclusion, and we must do everything in our power to stop them.

P.S. Armando, of course, wrote about the ICC last weekend, and Categorically Imperative diaried about it recently, too.

Update [2004-12-14 16:57:38 by DavidNYC]: DreamofPeace reminds us of what the pre-1937 world looked like.

Originally posted to Daily Kos on Tue Dec 14, 2004 at 01:05 PM PST.

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Comment Preferences

  •  ICC (4.00)
    I almost forgot: Armando also discussed the Interstate Commerce Clause in a different arena (corporate welfare) this weekend.
  •  Keeping their Power (4.00)
    If we get more (in)Justices like Thomas, then we will be in serious trouble as there are several judges who will have trouble hanging on until 2008.

    There is one thing restraining them from acting as you say though.  If they start striking down the New Deal they will be taking power away from their fellow Repugs in congress and the White House.  Once in power people have a strange way of wanting to keep or collect the power in the office they hold.  That is why Bush the campaigner asked for small government, but had no desire to deliver it once in power...

    Given the way congress is behaving as if they will never lose their majority, I doubt that they will approve anti-congress Justices.

    One the plus side, if they do get dismantelers into the Supreame Court the libertarians may get their way on several issues including drug laws.

    The man who trades freedom for security does not deserve nor will he ever receive either.-Benjamin Franklin

    by Luam on Tue Dec 14, 2004 at 02:48:03 AM PST

  •  Crappola (none)
    Cohen, the author of the Times op ed, apparently neglected to read the briefs in Raich, or he'd realize the plaintiffs do not ask the Court to overturn Wilburn, but to distinguish Angel Raich's personal use cultivation of medical marijuana, from Wilburn's regulation of commercial scale wheat growing as feed for animals which will be sold.

    The wheat regulation at issue in Wilburn exempted growers below a limit commensurate with home use, and the Wilburn Court justified Federal Commerce Clause jurisdiction, in part, justified by the Regulation's exemption for personal use.

    Shoddy work on Cohen's part.

    •  Cohen (none)
      I think Cohen was severely constrained by space, and I think his point - that conservatives badly wish to overturn Wilburn (and related cases) - is the critical one.
      •  asdf (none)
        I agree that's his main point, but it's reckless to paint the Raich case as driven by that agenda.

        My view, Wilburn does not need overturned, but does need a clear delineation of it's limits, ie a recognition that there's some activity that is not Interstate Commerce, or the 9th becomes meaningless. The wilburn Court explicitly declined to set that limit, as the commerce in hogs made the Wilburn facts too close to the prior Commerce cases to make a viable benchmark.

        My critique of Cohen's scholarship stands. Equating Burnett's agenda in his book with his advocacy in Raich is sloppy at best, if not disingenuous.

        •  Burnett (none)
          If Burnett is as radical as Cohen paints him to be - and I mean NOT in the context of Raich - then surely Burnett's must view his advocacy in Raich as a "brick in the wall" toward his ultimate aim to reverse Wickard, no?
          •  asdf (none)
            Barnett's not some nutcase idiot.  He's a SMART guy.  I think he's wrong (and badly so) in his interpretation of the commerce clause and liberty to contract, but it's possible for someone to be smart and wrong.  He blogs regularly over at The Volokh Conspiracy, which is essential reading even though I disagree with them.  The first step to defeating an ideology you disagree with is understanding it.
            •  Smart (none)
              Barnett's not some nutcase idiot.

              I didn't suggest that he was. In fact, I agree with you - I think the people who hold these views of the ICC are devilishly smart, which is what makes them such formidable opponents.

              •  Well... (none)
                Not all of them are (see, e.g., Thomas, Clarence).  There's also sometimes a tendency around here to say "if you disagree with us, you're stupid," which is electorally counterproductive and not a good argument.
                •  Yes (none)
                  There's also sometimes a tendency around here to say "if you disagree with us, you're stupid," which is electorally counterproductive and not a good argument.

                  That may be so - but I am emphatically of the viewpoint that our opponents are anything but stupid. They are, however, very wrong.

            •  Barnett's being painted way too radical here (none)
              Barnett co-authored an amicus brief in support of Lawrence v. Texas (privacy for gay sex), and written extensively in support of the concepts of liberty and privacy within the constitution (essential supports for the protection of Roe v. Wade).

              And now he's supporting two sick women in California who have been harrassed by the DEA.

              Oh, yeah.  He's our enemy.  Right.

          •  well.... (none)
            Read the Raich transcript and draw your olwn conclusion.

            Ultimately, his motivations matter less than the arguments he presents. His emails to the medical marijuana movement suggest mixed motivation, ie a genuine concern on the medical compassion level.

            If his sole interest was in overturning Wilburn, one might imagine he'd place less effort in distinguishing it.

        •  Raich (none)
          I couldn't find the SCOTUS brief for respondents in Raich (dunno why), but I did find the 9th Circuit brief. And indeed (not that I had any reason to doubt you), you are right that they argued that Wickard didn't apply. I grant that if you could persuade a court - as Raich did at the 9th Circuit - that Wickard doesn't apply, then you can leave Wickard undisturbed.

          However, in the dissent in the 9th Circuit opinion, Judge Bream said he was not able to distinguish the Raich situation from Wickard. So if that view were to hold at the SCOTUS, then you would have to convince the Supremes to overturn Wickard if you wanted to prevail in Raich.

        •  The case you mean is (none)
          Wickard v. Filburn.

          Join the American Constitution Society for Law and Policy: www.acslaw.org

          by yella dawg dem on Tue Dec 14, 2004 at 02:32:39 PM PST

          [ Parent ]

    •  Yes the Respondents did not call for overturning (none)
      Wickard, but that doesn't mean the court wouldn't do so. The question in Raich and Wickard are similar- Farmer who grows crop for personal use, is outside the regulatory scope of congress. In fairness, the Respondnets point out that Wickard really wasn't growing wheat solely for personal use, notwithstanding the fact that every  lawyer my age with a casual law school memory of the case thinks Wickard grew wheat for his personal use.  They have been aiming at Wickard ever since Lopez and Morrison, now is their chance.  God help us all.

      Did I read right that Randy Barnett, the law professor who represented the medical marijuana users, argues in a new book that minimum wage laws infringe on "the fundamental natural right of freedom of contract", Jesus H. Christ, let just bring back the four horsemen-Justices George Sutherland, Pierce Butler, James C. McReynolds, and Willis Van Devanter

      "Once in a while you get shown the light In the strangest of places if you look at it right"

      by molly bloom on Tue Dec 14, 2004 at 04:27:26 PM PST

      [ Parent ]

      •  Justice Jackson noted that (none)
        "The intended disposition of the crop here involved has not been expressly stated." Also, he didn't care: "Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us." I cannot believe that anyone would consider W v. F to be a good thing - I was shocked by it as a law student and I am even more shocked that anyone would defend this travesty. And I'm no Bush supporter.
        •  Or, I should quote this (none)
          "This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices."
          •  Wickard (none)
            If Congress wanted to institute a regulatory scheme for wheat, but every farmer was allowed to grow wheat and allege it was for his own consumption and this opt out of the regulatory scheme, then Congress's power wouldn't amount to much. That's exactly what Jackson's point is.

            Yes, it may seem "silly" that poor old Roscoe Filburn can't grow his own wheat unregulated, but in aggregate, it would post a real problem if you let everyone do so.

            •  aoeu (none)
              I rue the day when little baby Sue's tomato plant gets ripped from the ground by the Freedom Food Agency.

              no haikus now,
              join your local democratic party.
              There are fights in 2005 coming up.

              by TealVeal on Tue Dec 14, 2004 at 06:15:49 PM PST

              [ Parent ]

            •  The Congress did allow every gardner (none)
              to grow a rather limited amount of wheat without dealing with quota. Filburn had an issue because he exceeded both the threshhold for regulation, and his larger quota. While Jackson differed, the plurality Justices saw the unregulated personal scale exemption as necessary for the regulation of larger crops to stand.
        •  and how do you feel about (none)
          Congress requiring hotels and restaurants to serve both blakc and white patrons?  Cause Heart of Atlanta Motel and Katzenbah v. McClung rely on the travesty.

          "Once in a while you get shown the light In the strangest of places if you look at it right"

          by molly bloom on Tue Dec 14, 2004 at 05:09:09 PM PST

          [ Parent ]

          •  Then you should hope (none)
            the Court manages to distinguish Raich from Wickard, else it will, eventually, be overturned.
            •  I do hope it (none)
              will. I just have a sick feeling it won't

              "Once in a while you get shown the light In the strangest of places if you look at it right"

              by molly bloom on Tue Dec 14, 2004 at 06:41:24 PM PST

              [ Parent ]

              •  Interstate Commerce (none)
                I wonder what this will do to the governments ability to build things like interstates highways.  Roads were always State projects until the Interstate program came along under Eisenhower.

                Pride goeth before destruction, And a haughty spirit before a fall. Proverbs 16:8

                by PJ 7 on Wed Dec 15, 2004 at 02:47:17 PM PST

                [ Parent ]

                •  Not true. (none)
                  Under the oldest and narrowest readings of the Commerce Clause, the Federal Government built roads to facilitate Commerce. The first was the National Road, now Route 40, between Baltimore and Wheeling, WV.

                  As recently as the 1980s, it followed the original route, but large stretches were destroyed with the construction of Interstate 68.

                  The National Road (also known as the Cumberland Road, Cumberland Pike, National Pike and Western Pike) was created by an Act of Congress in 1806 and signed by President Thomas Jefferson. The act called for a road connecting the waters of the Atlantic with those of the Ohio River.
          •  I don't think I agree. (none)
            These cases don't go as far as Wickard.  Well, Katzenbach almost does, but the policies of common carriers and inns affect interstate commerce much more directly than the planting of wheat.  They were governed by special rules even at common law.  And requiring a business to serve people without regard to race (even Ollie's Barbeque) is a direct regulation of commercial interactions in the market.  Filburn's wheat (supposing it wasn't for sale) was subject to federal legislative jurisdiction just because, if lots of farmers had done as he did, it would have reduced the demand for (and therefore the price of) the wheat the government was permitting people to grow.  If this aggregation doctrine were struck down, lots of federal legislative power would go with it, but I don't think Ollie's Barbeque would be able to go all-white again.

            Join the American Constitution Society for Law and Policy: www.acslaw.org

            by yella dawg dem on Tue Dec 14, 2004 at 06:47:41 PM PST

            [ Parent ]

  •  Roe v Wade is a red herring (4.00)
    BushCo doesn't give a damn about abortion except when one of their own needs one, in which case they are (privately) for it. They simply use the issue to energize part of their base. Why would they want to end that energy?

    Republicans since Reagan have paid lip service to the abortion issue - all talk and no action (except for the "partial-birth" version, which affects practically no one).

    No, data is not the plural of anecdote

    by MarkInSanFran on Tue Dec 14, 2004 at 04:07:12 AM PST

    •  partial birth abortion (none)
      Why isn't federal regulation of abortion violation of the ICC clause too?
      •  Necessary and Proper Clause (none)
        Since the Supreme Court in Roe and Casey makes regulation of abortion legal (so long as the requirements of those cases are obliged), Congress would be free to regulate away to promote the general welfare of the people via the Necessary and Proper Clause.  Presumably they would never have to invoke the Commerce Clause of Article I.  At least that's what I would guess...

        "The Red Sox have won baseball's world championship. Can you believe it?!" -- Joe Castiglione

        by PADC on Tue Dec 14, 2004 at 08:03:06 PM PST

        [ Parent ]

        •  I don't think so. (none)
          The N&P clause isn't an independent grant of legislative authority.  It just authorizes Congress to enact all laws that it finds useful in carrying out its enumerated powers.  Regulating abortion is not an enumerated power.  

          Join the American Constitution Society for Law and Policy: www.acslaw.org

          by yella dawg dem on Wed Dec 15, 2004 at 01:30:56 PM PST

          [ Parent ]

    •  Not Exactly-- (none)
      Roe's a valuable voter mobilization tool for the interim while they still need voters.

      Otherwise I agree, it's not even close to their main purpose.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

      by Gooserock on Tue Dec 14, 2004 at 03:38:48 PM PST

      [ Parent ]

    •  Some effect at the margin (none)
      The abortion issue has affected SCt jurisprudence with spillover effects into free speech and administrative law.  For example, I don't think Rust v. Sullivan would have gone the way it did if the underlying issue wasn't abortion.

      In Rust, the SCt upheld agency guidelines that prevented family planning clinics from even discussing abortion.  It was a serious blow to the free speech rights of medical professionals.  In addition, it articulated a standard of deference to agency rule-making that merely required the agency's interpretation of law to be "plausible", which would make agency rule-making almost unreviewable.  The admin law angle did not survive very long, but the principle that government-paid is government-controlled speech remains.

      Its a bit of an anomalous decision, especially from an admin law point of view.  I think the majority altered the threshhold because it desperately wanted to uphold the regulations only because the underlying issue was abortion.

      •  Abortion has also caused anomoly on the left (none)
        I can't remember the name of the case off hand, but the liberal majority voted in favor of restricting speech in front of abortion clinics (by creating a safe-space zone so that women could come and go without direct-contact harassment), effectively recognizing a right to be left alone in a public space, something that they would never have tackled were abortion not involved.

        "The Red Sox have won baseball's world championship. Can you believe it?!" -- Joe Castiglione

        by PADC on Tue Dec 14, 2004 at 07:50:01 PM PST

        [ Parent ]

        •  Good point (none)
          You're probably thinking of Schenk v. Pro Choice Network and Madsen v. Women's Health Center.

          Rust still seems to me to be anomalous--the Supremes made up a rule (plausible interpretation by agency) that is different from previous and subsequent rules, apparently to achieve the desired outcome of preventing abortion couselling.  I can imagine the court deciding cases like Schenk and Madsen the same way even if the target of the demonstrations wasn't abortion clinics--for instance, if it was continuous demonstrations directed at a private school teaching an odious curriculum like racial hatred.  But I'm not very certain of that, so perhaps the parallel between Rust, Schenk, and Madsen is fairly drawn.

          •  That's Quite an Anomaly (none)
            It seems like a person's right to privacy (which should be obvious and guaranteed by the Ninth) would be a good case for prohibiting someone from getting in your face to deliver a message. But what rights were the Court defending in prohibiting information about abortion? How do they weigh the  "rights" of an agency as more important than the rights of an individual to know (which is the seldom-talked-about other half of freedom of speech)?

            Liberal Thinking

            Think, liberally.

            by Liberal Thinking on Wed Dec 15, 2004 at 12:28:30 AM PST

            [ Parent ]

            •  There's no recognised privacy right (none)
              not to hear a message on a public sidewalk, unless it's the sidewalk in front of an abortion clinic. Goofy.
              •  aoeu (none)
                How does right of way play into it?  Aren't protestors who block paths infringing on that?

                no haikus now,
                join your local democratic party.
                There are fights in 2005 coming up.

                by TealVeal on Wed Dec 15, 2004 at 01:28:33 AM PST

                [ Parent ]

                •  Obstructing sidewalk statutes (none)
                  are Constitutional, so long as they make no reference to the contentr of speech in which one is engaging. This does not preclude use of the sidewalk as a forum.

                  In a labor context, courts permitted regulations requiring pickets to keep moving, but guaranteeing of the sidewalk.

                  There's also a Supreme Court case, ironically from the sidewalk adjacent to their own Courthouse, which holds that when the publicly owned sidewalk forms a common right of way with adjacent privately owned walkway, the whole is treated as a public forum.

                  None of this allows you to fully block the right of way.

                  This principle is key to my pending case from the Octrober Kerry rally in Madison. The campaign had a permit for the Street. The permit had no provision authorising the blockage of the sidewalk, and the ordinance covering Street Use Permits states that "normal pedestrian traffic" should be maintained. I, and my "Grow Hemp, Save Farms" sign are normal pedestrian traffic on West Washington Avenue.

                  •  aoeu (none)
                    Ok, so the abortion protestors were not allowed to completely block the sidewalk even before the laws were enacted?  Couldn't they be prosecuted for verbal harassment for hurling invective at the women?

                    It seems like (based on my limited knowledge) there wasn't really a need to pass the laws against protesting X number of feet from a clinic.

                    no haikus now,
                    join your local democratic party.
                    There are fights in 2005 coming up.

                    by TealVeal on Wed Dec 15, 2004 at 02:58:59 AM PST

                    [ Parent ]

                    •  Invectives and the law (none)
                      Invextives may be hurled, but they're speech, not assault. Hurled quite a few invectives in my day, and been occasionally arrested for it, but those cases all resulted in acquittal.

                      When I hurled a few at Republican Delegates in  last summer as they waited to get into bars, the New York Police, at first taken aback, quickly realized I was within my rights.

                      I'm working on some good ones for the attendees at the "Inaugural" Balls next month.

                      •  aoeu (none)
                        Hm, I thought assualt was verbal and battery was physical, I must be wrong.

                        no haikus now,
                        join your local democratic party.
                        There are fights in 2005 coming up.

                        by TealVeal on Wed Dec 15, 2004 at 03:37:38 AM PST

                        [ Parent ]

                        •  It's a matter of degree (none)
                          Assault is technically any threat (verbal or physical) that puts someone in reasonable fear of imminent harm.  Battery requires a touching.  The law prior to the abortion-clinic-protest cases was neutral in purpose; the government could regulate time, place, and manner of speech so long as these regulations remained viewpoint neutral.  But to say that the space in front of abortion clinics gets special recognition such that speech can be more limited there than elsewhere was a dramatic break from established 1st Amendment law.  The irony (for me at least since I'm pro-choice) is that it's exactly the right result.  The Justices just came to it through dubious legal analysis.

                          "The Red Sox have won baseball's world championship. Can you believe it?!" -- Joe Castiglione

                          by PADC on Wed Dec 15, 2004 at 04:32:24 AM PST

                          [ Parent ]

                      •  aoeu (none)
                        ah yes, assault is the threat to attack.  Assuming dictionary.law.com is correct.

                        no haikus now,
                        join your local democratic party.
                        There are fights in 2005 coming up.

                        by TealVeal on Wed Dec 15, 2004 at 03:38:45 AM PST

                        [ Parent ]

                        •  Depends on the State. (none)
                          Statutory definintions, and caselaw vary.

                          Piethrowing, for instance, is only disorderly conduct in Wisconsin and Ohio, (at least as of 1977 when my pal Steve Conliff was acquitted by a jury after pieing Governor Jim Rhodes of Kent State fame,) since there's neither threat nor intent to injure, and there's no seperate battery offence.

                           In New York, California, and in Federal jurisprudence, any battery is deemed an assault.

                          I was on the wrong side of the case that set the Federal precedent. After spitting in the eye of Senator Henry "Scoop Jackson in 1976, I served 15 days as the only person ever convicted under the Congressional Assassination, Kidnapping, and Assault Act, at the time under a Misdemeanor Assault provision.

                          Today, any violation of the aforementioned statute is defined as a Terrorist Offence under an obscure provision of the Patriot Act, and carries a penalty of life in prison. I kid you not.

  •  A new dKos fund-raising idea... (none)
    Let's raise money to hire a physical trainer for Justice Stevens. Sigh.
  •  Federalist Society: Legal Fundamentalists (4.00)
    The Federalist Society is a pernicious influence on law and juridprudence, and they're the legal equivalent to the people who insist that the only "true" interpretation of the Bible is a literal intepretation.  

    Thanks for reminding people that there is much more than Roe v Wade at stake in the next appointment to the Court.  

    •  Federalists = Taliban Jurists (none)

       The "Federalist Society" cranks are to legal politics what the Falwell Pharisees are to social politics (althought the two, as is plain to see, overlap about 80 percent).

       As I've commented re:  the Fundagellical Taliban, i.e., that their politics informs their religion, NOT the other way around as they would advertise, so too do Right Wing politics and "causes" (ummm... like $$$ and power, for example) inform the Federalist Society members' positions on cases and legal issues, NOT some "tug" of conscience that dictates that they side for some kind of "Constitutional integrity" over "liberal activism."  What a load of crap.  

       It's just a gaggle of mostly sheep-witted ideologues who basically hate anything that would lesson the wealth of the already wealthy or the power of the already powerful.  They're bred in law schools from the dregs of humanity who never saw a homeless person whom they didn't disdain, a workers' rights law they didn't feel instinctively repulsed by, an environmental protection law they didn't assume would "hurt Business" (their god), or a civil rights law they didn't suspect would undermine their power (which, in a few years, they would come to enjoy in full as members of the Republican Elite).

       I would call them a nuisance to this country, but that word's already been reserved for Al Qaidaists, and, somewhere, there's a stronger, more appropriate word for what they are, and what they are doing to, this country.

       BenGoshi
      _______________

         

      "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." T.J.

      by BenGoshi on Tue Dec 14, 2004 at 01:52:14 PM PST

      [ Parent ]

    •  Shameless Plug (none)
      The antithesis of the Federalist Society is the American Constitution Society.  See my sig and check out the web site.

      Join the American Constitution Society for Law and Policy: www.acslaw.org

      by yella dawg dem on Tue Dec 14, 2004 at 02:36:19 PM PST

      [ Parent ]

    •  They use the federalist papers (none)
      as legal documents. Not only "interpreting" the constitution but superseding (sp?) it. Not that the left is any better. Political change through judicial fiction isnt any better.

      The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

      by cdreid on Tue Dec 14, 2004 at 09:22:40 PM PST

      [ Parent ]

  •  Yep (none)
    Bush appointees are definitely going to go after the Commerce Clause, big time, especially if Clarence Thomas is appointed Chief Justice.  He made it clear in Lopez that he is anxious to see the clock rolled back to 1937 when it comes to the Commerce Clause.  Of course, the funny thing is that Thomas and the rest of the Constitution in exile folks, who claim that they're originalists, are wrong about the ICC on originalist terms.

    The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

    by Categorically Imperative on Tue Dec 14, 2004 at 05:59:28 AM PST

    •  ICC (none)
      Darn - I knew I forgot something else. Your diary on Thomas & the ICC was very illuminating.
      •  Thanks (none)
        I'm glad to see that the issue is getting some early press in the SCLM.  Personally, I'd rather hear Senate Dems question Bush appointees about their view on the Commerce Clause than on Roe v. Wade.  Of course, I'd settle for them asking any tough questions, but that's another story.

        The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

        by Categorically Imperative on Wed Dec 15, 2004 at 04:10:38 AM PST

        [ Parent ]

    •  I'm no lawyer, but this "orginalist" (4.00)
      thing is driving me batty. Because I just can't get my head around the idea that whole generations of law have been made accepting that "commerce" means "market exchages" as opposed to the larger "human exchanges."

      Is this for real?

      Second biggie question: if these Federalist/pre-1937ers are so gung-ho to see the world reversed, the simple---and I would think highly effective---route would be to start banging for a clearly worded constitutional amendment. One that provides for the vested powers necessary for a fully functioning federal legislative body.  

      I realize how hard it is to get an amendment through, but that's not the real point. It just seems to me a politically smart way to get support for the idea of what the post-1937 view of the commerce clause does for the nation.

      It's a useful FRAME like everybody keeps prattling on about . . .

      •  FWIW: A conservative view of the frame (3.66)
        Part of the conservative frame that confuses liberals is their view of liberty. Liberals believe liberty is possessed by the individual. Conservatives believe that liberty is a general freedom that belongs to the community, i.e. businesses, churches and similar local groups.

        Their belief stems from the natural law/Burkean theory that freedom of action is determined by obeyance to natural law, i.e. the Bible and tradition. Therefore, it is perfectly logical for community standards to determine how much freedom the individual is allowed to exercise. Freedom outside the boundaries of community standards is considered criminal, therefore outside the boundaries of genuine liberty.

        This is a very strong father frame, father knows best. This is the source of the tension between whatever remains of the libertarian branch of the Republican party and the religious branch. Of course, the libertarian branch has been awfully quiet lately. I think they've been content with their economic libertarian doctrine and tax breaks.

        A good frame would exploit this tension and divide the two branches of conservative thought.

    •  Funny guy, that Thomas -- (none)

       He wants to go back to pre-Brown days.  He wants to reinstate Plessy.  

       Actually, it's not funny.  He's a half-wit, Quisling, asshole whom the Chimperor's Without-a-Conscience daddy foisted on this nation (with the help of that "moderate" from the Keystone State -- Hah!) to everybody's detriment.

       BenGoshi
      ________________

      "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." T.J.

      by BenGoshi on Tue Dec 14, 2004 at 02:28:17 PM PST

      [ Parent ]

  •  What a pathetic ideology (4.00)
    That drives people to see ending America's tenuous status as a first world country as a "goal".  How utterly pathetic that some people dedicate their entire lives, knowingly, intentionally, making the world a worse place than it already is.

    I wrote about it here a long time ago, and I'll rephrase the idea: I really think there's a pathological strain of people in the human race that derives pleasure out of destroying nice things. Even when it isn't in their own long-term best interest. They just like to see how much they can dismantle. Perhaps it gives them an elusive feeling of power to steal away other people's dreams.

    •  asdf (4.00)
      Instead of demonizing, I think it's easier to comprehend as two competing ideas of social justice.  

      One views the distribution of social goods (wealth, opportunity) as most just which produces the greatest good for the most people.  The other views the distribution of goods as most just which derives from the independent economic activities of free people.  In the United States, most people maintain a hybrid ideology where both coexist, and despite the contradictions, this seems to work pretty well for a pluralistic modern society, although the modern GOP has become master at using both ideas of justice propagandistically, which has the effect of socializing the costs and privatizing the benefits.

      •  whoops, hit post too soon (none)
        So what I mean to say is that these people don't want to destroy America.  They are extremists in the service of a narrow conception of justice.
        •  Sorry, disagree (none)
          They want to destroy america. And they're doing it right now. They have no interest in social justice, whatsoever.

          I wonder how much it will take before people understand there is a predatory element to the human species, and how free we are as societies is dependent on how effectively we keep these predators out of power.

          •  They Do Understand the Species (none)
            and they fear, and try to contain, all those species threats coming from our side.

            But from the military, the flag, the church, their side--by definition, it's utterly inconceivable.

            Given the ownership of our information infrastructure, it's not likely that masses will come to see what's going on in time to rally.

            We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

            by Gooserock on Tue Dec 14, 2004 at 03:45:18 PM PST

            [ Parent ]

      •  Say it with me!! (4.00)
        "socializing the costs and privatizing the benefits"

        "socializing the costs and privatizing the benefits"

        Aha! MEME-'o-the-DAY!

        •  Exactly! (none)
          They want to externalize their costs but keep any monies they derive from such false "economies" all to themselves.
          •  As long as we talk like that, no wonder we lose. (none)

            Try this:

            "They get the gold mine, and y'all get the shaft"

            Don't attack the bourgoisie like some lunatic Che worshipper.  They share similar problems with working majority.   It's a turn back to 19th century  robber baron exploitation, with cheap playstations to anesthenitize the masses.

      •  The Free Rider Economy (none)
        This little discussion y'all have going has great potential.

        If we were to calculate the gross amount of subsidy received by America's major commercial concerns from socialized inputs, people might finally see that the entire "multiplier effect" of American capital is wholly dependent upon the public sector.

        For instance, FedEx generates an insane amount of economic activity.  None of which would be possible without socialized funding of interstates, airports and local roads.  But in conservative economics, FedEx gets the credit for every last nickel.

        Taken back far enough, we owe it all to King James, right?

  •  So let me ask this question here... (none)
    ... where it is on-topic...

    ... can anyone point me to a concise write-up on the right's "constitution-in-exile" interpretation?

    I'm currently reading a Barron's guide called The Meaning of The Constitution and it describes a constitution that I am very familiar with, article by article, section by section, with references to cases that defined the current interpretations and precedents.

    Is there an equivalent concise, constitution 101 for non-lawyers, "Meaning of..." explaining the conservative interpretation?

    "Do what you can, with what you have, where you are." - Theodore Roosevelt

    by Andrew C White on Tue Dec 14, 2004 at 01:04:06 PM PST

  •  I don't think (none)
    many people understand just how precarious a position we are in as far as all of our protections are concerned. The right has been so very effective in demonizing all worker protections while saying that the free markets will compensate. And their arguments are so internalized by the country that even many union members I've talked to believe that unions are a bad thing.

    With the GOP in control of everything and the head start the right has on the demonization, I don't know if we will be able to recover in time to stave off the coming dissaster. And I don't think "dissaster" is hyperbole.

  •  Can anyone enlighten me... (none)
    on the term "Constitution in exile"?  A brief description or linked reference would be great.
    •  Exile (none)
      The editorial linked in the post offers an explanation.
      •  DavidNYC (none)
        see my note and question above. Did Bork do a more thorough write-up? Or is there a pre 1937 write-up on the constitution that these guys use as their basic text?

        "Do what you can, with what you have, where you are." - Theodore Roosevelt

        by Andrew C White on Tue Dec 14, 2004 at 01:17:46 PM PST

        [ Parent ]

        •  Look (none)
          I'm sure there is - I'm just not aware of it. I'll have to look.
          •  I've been looking (none)
            and have found some articles and brief descriptions but nothing that provides a fundamental basic text interpretation of The Constitution from their viewpoint.

            Thanks.

            "Do what you can, with what you have, where you are." - Theodore Roosevelt

            by Andrew C White on Tue Dec 14, 2004 at 01:39:42 PM PST

            [ Parent ]

            •  The Federalist Society recommends (none)
              Epstein, Richard. "The Mistakes of 1937." George Mason Univ. Law Review 11 (1988):5-20.

              Graglia, Lino A. "`Constitutional Theory': The Attempted Justification for the Supreme Court's Liberal Political Program." Texas Law Review 65 (1987):789-798.

              Graglia, Lino A. "From Federal Union to National Monolith: Mileposts in the Demise of American Federalism." Harvard Journal of Law & Public Policy 16 (1993):129-135.

              Graglia, Lino A. "How the Constitution Disappeared." Commentary, Feb. 1986, at 18-26.

              Join the American Constitution Society for Law and Policy: www.acslaw.org

              by yella dawg dem on Tue Dec 14, 2004 at 02:45:17 PM PST

              [ Parent ]

              •  Thanks. (none)
                I was looking at their site yesterday. It looks like those might be as close at it gets to what I am looking for. Oh well.

                Thanks for the help!

                "Do what you can, with what you have, where you are." - Theodore Roosevelt

                by Andrew C White on Tue Dec 14, 2004 at 04:16:15 PM PST

                [ Parent ]

        •  One bit of extremism Bork avoided (none)
          Amazingly enough, Bork had no problem with the New Deal era interpretation of the Commerce Clause.  His only interest in economic policy was being mostly against the antitrust laws as a matter of policy, which didn't raise specifically constitutional issues.

          Mostly Bork was obsessed with being anti-everything the Warren Court was for.  The ironic thing is that the three or four greatest achievements of the Warren Court -- its civil rights jurisprudence (Brown), its reapportionment jurisprudence (one person, one vote), the core of its criminal jurisprudence (Miranda and right to counsel), and individual rights (1st amendment and Griswold -- Roe came later) -- are not only mostly intact, they are in large part reaffirmed and beyond reproach.

          So even though the "activist judges" crap rhetoric came from 40+ year old wingnut attacks on the Warren Court, the wingnuts have barely laid a finger on the Warren Court's cases.

          Not saying these folks are not a threat, not by a long shot.  But if Bush is really going to nominate some of these loonies, it could be his bridge too far.  +

          Certitude is not the test of certainty. We have been cocksure of many things that were not so.-- Justice Oliver Wendell Holmes, Jr.

          by Steady Eddie on Tue Dec 14, 2004 at 01:39:14 PM PST

          [ Parent ]

          •  Yeah, my mistake (none)
            I guess it was Ginsburg that wrote up the piece on the "consitution in exile" not Bork. I'll have to give that a read though it's not exactly what I was looking for either.

            "Do what you can, with what you have, where you are." - Theodore Roosevelt

            by Andrew C White on Tue Dec 14, 2004 at 04:17:57 PM PST

            [ Parent ]

          •  I fhe gets three appointments (none)
            It could give the court a 5-4 or even 6-3 conservative majority for a couple of decades. It wouldn't matter that he over-reached. A Scalia/Thomas court could keep America in a pre-New Deal economic vise for 20 years easily.
          •  Warren Court Relied on Wickard (none)
            for Heart of Atlanta Motel and Katzenbach v. McClung. These are the public accomodation cases. Hotels and Restuarants of a certain size could be required through congressional regulation to serve blacks as well as white patrons. Overturn Wickard and you overturn Heart of Atlanta Motel and McClung. Justice Souter wrote a passionate dissent in Morrison (the violence against women act) arguing that Morrison had implicitly overturned Wickard. I  wrote a diary with links to the cited cases, if any one would like to read the original cases we are talking about.

            "Once in a while you get shown the light In the strangest of places if you look at it right"

            by molly bloom on Tue Dec 14, 2004 at 04:54:01 PM PST

            [ Parent ]

            •  Souter gets to that conclusion (none)
              by taking Wickard as it's been taught, not by how it was written.

              If the respondents in Raich succeed in distinguishing Wickard, without overturning it, the discrimination in accomodation cases will stand.

              •  I have no argument (none)
                with the respondents position on wickard. I thought they did a remarkable job. Its not the respondents I am worried about. Its that bastard Scalia.

                "Once in a while you get shown the light In the strangest of places if you look at it right"

                by molly bloom on Tue Dec 14, 2004 at 06:43:19 PM PST

                [ Parent ]

                •  If the Court's liberals join O'Connor (none)
                  in limiting Wickard, Scalia will have a harder time finding the votes down the road to overturn it outright.
                  •  I hope you are right (none)
                    but I feel like the Reverend Niemoller, hoping they will just stop with the communists and the trade unionist, surely the court is reasonable, right?  I mean Bush v Gore was just an aberration, right...

                    "Once in a while you get shown the light In the strangest of places if you look at it right"

                    by molly bloom on Wed Dec 15, 2004 at 04:08:33 AM PST

                    [ Parent ]

          •  Bork never avoided this... (none)
            In fact, he had an extended discussion of it in his book "The Tempting of America". He clearly wanted a return to Lochner era jurisprudence.
            •  That was after he was rejected (none)
              I have no idea how much he believed that or not when he wrote it but it was nothing like what he wrote and said before he was nominated in 1987 -- because I was on the Senate Judiciary Dem staff and read everything he ever wrote or had transcribed to that time (other than some antitrust stuff).

              In fact, he had previously held up Lochner as a supposed example of the dangers of substantive due process as a constitutional doctrine.  Of course, in that view (that there was no tenable distinction between substantive due process for political rights and for economic rights), he was in disagreement with virtually the entire membership of the post-Hughes Supreme Courts, including conservatives like Harlan.

              I imagine that after leaving the Court of Appeals (and didn't that give the measure of the man -- no interest in being a judge if he couldn't be on the S. Ct.!), he either had no interest in the work of even having internally consistent views, or he was just randomly ventilating his bile.  Probably both.

              Certitude is not the test of certainty. We have been cocksure of many things that were not so.-- Justice Oliver Wendell Holmes, Jr.

              by Steady Eddie on Wed Dec 15, 2004 at 06:19:23 AM PST

              [ Parent ]

    •  Here is a link (none)
      Here is a good blog enty on the  subject

      "Once in a while you get shown the light In the strangest of places if you look at it right"

      by molly bloom on Tue Dec 14, 2004 at 05:05:23 PM PST

      [ Parent ]

  •  Most Important (none)
    Nobody realized it, but this is what the election was really all about.

    Shrum probably told Kerry not to talk about it because the "the public would not understand it," but Kerry should have said Bush will appoint judges to destroy Social Security, the Clean Air Act, and everything else we hold dear.

    •  Opportunity and Security (4.00)
      These should be the keystones of the new Dem approach.  We can attack the Repeal-the-New-Deal movement (more expressive than Const in exile) as ripping away the safety net that we now take for granted.  Not just retirement security, but the security that food will be (relatively) safe, that the air will be fit to breathe and the water fit to drink.  The assault on governmental regulation of this nature is an assault on our safety and security.  The Dems can easily promise not only to maintain and strengthen the safety net, but to expand opportunity as well.  

      This is the flip side of the movement back to the Robber Barons.  Only those who are either born to wealth or amoral cutthroats will have any real opportunity to do well in the New Repub World.  The rest will have bad schools, no health care and be at the mercy of the sharks out there.  If security was really so overwhelmingly important in the last election, then people should be receptive to this kind of characterization of the Republican Dream.  

      By contrast, the Dems are for maintaining (even strengthening) the safety net and expanding oppportunities through improved education, a healthy start etc, ending with retirement security.  Not a handout, but a helping hand and a promise to maintian the rules of the playing field.  It seems to me to be a pretty coherent message that can be boiled down to a few clear ideas.

      If you're going in the wrong direction and you stay the course, where, exactly, do you wind up?

      by Mimikatz on Tue Dec 14, 2004 at 01:52:16 PM PST

      [ Parent ]

      •  Let me try to define a message (none)
        Democratic message for every American:

        1.    A healthy start

        2.    A good education including education for necessary career changes.

        3.    Support for a family in trouble.

        4.    Guaranteed health care for life.

        5.    Guaranteed minimal retirement with possibility of supplementing it.

        6.    The possibility of personal success equal to capabilities and opportunities.

        7.    Fair and honest treatment by employers.

        8.    A decent environment.

        9.    The opportunity to find a job that pays well enough to support a family.

        10.     Protection from crime.

        11.     National security.

        Note: The order might be different from this. This is not a listing in priority order. 11 and 10 might be first.

  •  Saw Robert Bork (none)
    on Lou Dobbs not too long ago and thought, "man are we in trouble."  I had all but forgotten him (selective memory and hearing helps me get through the day.)  He was discussing the "liberal court as it stands today" and talking about how they "take great liberties with the constitution."  Not quoting really, just paraphrasing from what I recall.  Anyway, it was disturbing to me...  if the current court seems liberal to him, YIKES!!!  And I know that there is much more at stake than just Roe v. Wade here, but try talking to anyone about it.  First, they are highly insulted that that isn't your top priority and second, they don't listen/aren't interested/don't believe/care.  

    A good indignation brings out all one's powers. Ralph Waldo Emerson

    by bittergirl on Tue Dec 14, 2004 at 01:12:52 PM PST

  •  don't be such a Danny Doomsayer! (4.00)
    it seems like every time bush nominates somebody for something, it's the end of the world!

    well it's time to turn that dead-fish frown upside down!

    we all have to just admit that a lot of people are going to die and our quality of life is going into the shitter!

    that's no reason to be sad! be happy!

  •  Canada never looked better (none)
    I'm buying my property now before the rest of the reality-based community jacks up the rates.

    DON'T BLAME ME; I VOTED FOR CLARK

    by DWCG on Tue Dec 14, 2004 at 01:17:01 PM PST

  •  Yikes! (4.00)
    Holy Lochner Batman!!
  •  Your next mission (none)
    should you choose to accept it:

    I recall perusing an article, perhaps on Alternet, just maybe within the last week, about an attempt afoot to expand the range of the ICC.

    The goal is to destroy the practice of communities racing to the bottom for the sake of additional investment by providing big giveaways in land, tax rebates and other goodies to corporations that relocate.

    I think it's a pernicious practice, and one that only a broader interpretation of the ICC could possibly eradicate.  This is something we should all get behind, and I'd love to see it written up by an astute legal observer.

    The corporate-relocation shell game has set our states and municipalities against each other, ultimately aiding the overall conservative agenda of emasculating government.  Perhaps we could call it the "I got mine, now fuck all y'all" principle.

    On the street, the consequences are often disastrous.  The promised jobs don't materialize, the relocating entity is often indemnified against considerable losses, and very unfortunate planning decisions get made far beyond the light of day.

    Wanna check it out?

    •  Different Ballgame... (4.00)
      That's the "Dormant Commerce Clause."  The Interstate Commerce Clause debate is about what the federal government can regulate.  The Dormant Commerce Clause is the flipside--a state can't unduly burden interstate commerce by law.  For instance, Texas can't suddenly start placing tarriffs on oil imported from other states in the U.S.

      The "true believer" conservative school takes both of these to their extremes.  The federal government can regulate almost nothing because it's "purely intrastate," but the states can't regulate because it "affects interstate commerce."  It's a way of getting to anarchocapitalism without regulation.

      •  "Anarchocapitalism" (none)
        Word of the day! Here's a 4.
        •  Actually... (none)
          a goodly number of libertarians consider "anarchocapitalism" their goal.  Scary.
          •  Pure Libertarians do (none)
            They also don't believe in things like public schools or taxpayer funded roads.  They are a few beers short of a six pack.
            •  aoeu (none)
              But they believe in artifical imaginary boundries on land recognized by the government.

              Go figure.

              no haikus now,
              join your local democratic party.
              There are fights in 2005 coming up.

              by TealVeal on Tue Dec 14, 2004 at 02:33:35 PM PST

              [ Parent ]

              •  asdf (none)
                Well, the most extreme of libertarians would argue that you have the right and obligation to defend your own property.  It's not the government's job.  It's yours.
                •  aoeu (none)
                  At some point I can't see the difference between libertarianism and anarchy.

                  no haikus now,
                  join your local democratic party.
                  There are fights in 2005 coming up.

                  by TealVeal on Tue Dec 14, 2004 at 02:39:23 PM PST

                  [ Parent ]

                  •  Natural rights (none)
                    that's the only difference.  The libertarian says state power is justified only as necessary to protect the natural right to property.  Pull out that wedge and libertarianism slips into anarchism.

                    Join the American Constitution Society for Law and Policy: www.acslaw.org

                    by yella dawg dem on Tue Dec 14, 2004 at 02:54:50 PM PST

                    [ Parent ]

                    •  aoeu (none)
                      Do you know how libertarians justify a "natural" right to property rights on land?

                      no haikus now,
                      join your local democratic party.
                      There are fights in 2005 coming up.

                      by TealVeal on Tue Dec 14, 2004 at 03:05:37 PM PST

                      [ Parent ]

                      •  As a "Green Libertarian" (none)
                        I argue for a "natural right" to property for bears.
                      •  My ancestors took it (none)
                        It was just sitting there. We took it.

                        A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. - Emerson

                        by freelunch on Tue Dec 14, 2004 at 04:31:25 PM PST

                        [ Parent ]

                      •  You work it, you own it. (none)
                        If it's previously unowned, that is.  The idea comes from John Locke's Second Treatise of Government:  what's primarily yours is your own activity, and because you own that activity, you also own all the economic value you produce.  This doesn't mean of course that we all have to be subsistence farmers.  Value can be created by different forms of activity.  Anyway, that's the only argument I can recall hearing for a natural right to private property.  

                        Join the American Constitution Society for Law and Policy: www.acslaw.org

                        by yella dawg dem on Tue Dec 14, 2004 at 06:25:32 PM PST

                        [ Parent ]

                        •  aoeu (none)
                          At first glance this thought doesn't sit right with me.  Does one lose property rights if one stops working it?  Did the Indians have property rights on land?  They were working the land well before we showed up.  If so these were stolen from them as the Indians were driven off their lands and/or slaughtered.

                          Thanks for the reply.

                          no haikus now,
                          join your local democratic party.
                          There are fights in 2005 coming up.

                          by TealVeal on Tue Dec 14, 2004 at 06:33:38 PM PST

                          [ Parent ]

                          •  Yeah, there are problems. (none)
                            It's impossible to trace the authority of current property holders back to some "state of nature."  Ultimately some sort of conquest gets in the way.  But the conqueror gets to make the property laws and to set up the courts that enforce them.

                            I suppose a libertarian could decide to jettison the notion of natural rights, and I'm sure many people in the Libertarian party wouldn't defend natural rights, if pressed with arguments like this.  They'd be pragmatists about it, like the rest of us.  But the question then becomes how to justify the limitation of state authority to the protection of person and property.  If property rights are positive rights created by the government, rather than natural rights that the government is chartered to protect, then why should property rights have a special status that, say, welfare entitlements don't have?  And why can't property be taken away through taxation when the government decides some other goal is more important?

                            Join the American Constitution Society for Law and Policy: www.acslaw.org

                            by yella dawg dem on Wed Dec 15, 2004 at 09:15:27 AM PST

                            [ Parent ]

                          •  aoeu (none)
                            If only we had more libertarians well versed in their ideology here..Thanks for your long reply, it's something I intend to ask my libertarian friend about next time I see him.

                            no haikus now,
                            join your local democratic party.
                            There are fights in 2005 coming up.

                            by TealVeal on Wed Dec 15, 2004 at 10:37:08 AM PST

                            [ Parent ]

                    •  Libertarians (none)
                      Okay, this is silly. "The libertarian says state power is justified only as necessary to protect the natural right to property."

                      Libertarians object to power based on coercion. The libertarian objection to most of what "liberals" want is simply that it is obtained at the point of a gun. You don't freely choose to pay taxes and have them used for the things they are used for, you do it because you are coerced.

                      Take "abstinance only sex education" for example. I don't want my money wasted on that worthless crap. Libertarians argue that that money is taken from me in taxes. I'm coerced into paying taxes because if I don't I go to jail and I go to jail, ultimately, because a police officer with a gun comes around and will shoot me if I try to escape.

                      This is a legitimate argument. At what point does the government (or anyone else for that matter) have a right to force you to do things? If it's for the common protection (paying the army, paying the cops), a libertarian will go along. But just for social justice, no.

                      The biggest flaw in the libertarian argument is that this is a modern world and it wasn't built on libertarian principles from the ground up. Since most people accept the modern world more or less as is, it would be very disruptive to remake it as a strictly libertarian society.

                      The second biggest flaw is that might doesn't make right. There are inherent inequities in, for example, economic power. Ignoring them means some (in fact most) people are never given equal opportunity. That isn't the way the vast majority of people want to run society.

                      As an ideal, libertarianism has a lot to recommend it. And it is not equivalent to anarchy. (I'll grant that it sometimes seems like anarchy when you talk to Libertarians, but that's another story.)

                      Liberal Thinking

                      Think, liberally.

                      by Liberal Thinking on Wed Dec 15, 2004 at 02:08:22 AM PST

                      [ Parent ]

                      •  I don't agree. (none)
                        I'll grant you that my characterization of libertarianism was over-simplified -- it would have to be, given its length -- but it wasn't silly.  It's a very common libertarian position that the function of the state is to protect private property -- and personal safety, which I neglected to mention because everyone but the most extreme anarchist agrees on that -- and that any exercise of state power beyond that is illegitimate.

                        You propose two different alternatives.  First, you say that libertarians "object to power based on coercion."  Surely libertarians don't object to all power based on coercion.  If they did, they would have to object to the criminal law, which is necessarily based on coercion.  We don't just ask people if they'd like to go to jail.  

                        Second, you ask, "at what point does the government (or anyone else for that matter) have the right to force you to do things?"  The person who asks this question isn't objecting to all power based on coercion, but only to some of it.  The question is how to draw the line.  The classic libertarian position, held by many supporters of institutions like the Cato Institute, is that you draw the line at the protection of person and property.  Everything else is libertarian lite.  Not that there's anything wrong with that:  I have never found the arguments for pure libertarianism all that persuasive.  

                        Join the American Constitution Society for Law and Policy: www.acslaw.org

                        by yella dawg dem on Wed Dec 15, 2004 at 07:25:35 AM PST

                        [ Parent ]

            •  Simply not accurate (none)
              Libertarians in general believe in individual liberty above all else (something democrats used to believe in). They also believe the highway system is a legitimate use of federal money as the federal highway system was and s built as a means of military transport (the dimensions are determined by military needs). You're right that they believe the fed shouldnt be involved in education.. but the fed doesnt fund education except to get votes. Local property taxes usually fund education.

              You should try talking to a few of them for a while before misinterpreting what they think.

              The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

              by cdreid on Tue Dec 14, 2004 at 09:30:33 PM PST

              [ Parent ]

              •  Consistency (none)
                Except that libertarians don't believe in my personal liberty when I choose to exercise that liberty and vote for politicians who implement programs which libertarians say infringe on personal liberty!

                If you stop me from voting, or stop the politicians from enacting what I voted them in office to do, well, you've infringed my liberty.

                But if you let the politicians go ahead and implement something libertarians think is coercive, then you've infringed liberty, too!

                It's a no-win situation for libertarians.

                •  Where exactly did you get this from? (none)
                  You're claiming libertarians dont believe you have the right to vote?????

                  This post is just mind boggling.

                  The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

                  by cdreid on Wed Dec 15, 2004 at 12:53:51 AM PST

                  [ Parent ]

                  •  Trying again (none)
                    That is not what I said at all. Let me try again.

                    What I said is that if you are a libertarian and you support my personal freedom, that means you support my personal freedom to vote as I see fit.

                    I want to vote for politicians who will create or support programs which many self-described libertarians say impermissibly infringe personal liberty. (Let's say, for example, Social Security. Many libertarians think compulsory retirement savings represents an impermissible infringement of liberty.)

                    In other words, I want to use my personal liberty (to vote) to restrict my personal liberty (to be required to contribute to Social Security).

                    A libertarian who opposes Social Security will want to see the program eradicated. But if, say, 60% of the population votes in favor of Social Security, then the libertarian is left with an untenable situation. If he tries to get rid of Social Security at that point (perhaps by trying to get it delcared unconstitutional, for instance), then he's going to be abridging the personal freedom of all those who supported it in the first place.

                    (Leave aside the fact that it is extremely unlikely Social Security would ever be declared unconstitutional - I am using it for illustrative purposes only.)

                    •  Actually david (none)
                      Thats exactly what you said.

                      This last post seems to state that if a libertarian works against your political views he or she denies your right to vote. The thinking is muddled and the point is illogical.

                      As i've said before. Try actually talking to some libertarians. Speaking to and learning the reality of those they stereotype is something quite a few Kossacks might want to consider.

                      The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

                      by cdreid on Thu Dec 16, 2004 at 08:07:52 PM PST

                      [ Parent ]

                      •  No (none)
                        You're accusing me of "muddled thinking"? Oy vey. Thanks - that's very generous of you. I could accuse you of muddled reading, but I won't.

                        I've spent a great deal of time studying and thinking about this topic. Your accusation is baseless and unfriendly. Rather than ask me for a further clarification, you attack me and assume the worst of me. That's hardly in the spirit of a site such as this, and certainly not the kind of thing I come here to experience.

                        I'm through discussing this with you.

                        •  You're claiming (none)
                          people you neither know nor understand believe something they dont. I happen to know quite a few of them and understand their philosophy well. And what you very clearly said was wholely untrue.

                          You said
                          Except that libertarians don't believe in my personal liberty when I choose to exercise that liberty and vote for politicians who implement programs which libertarians say infringe on personal liberty!
                          If you stop me from voting, or stop the politicians from enacting what I voted them in office to do, well, you've infringed my liberty.

                          Twice claiming libertarians somehow would refuse your right to vote. Clearly. Your words not mine.
                          You are free to get in a huff and storm off as you will. Enjoy yourself. But those are your words.

                          The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

                          by cdreid on Fri Dec 17, 2004 at 03:07:11 AM PST

                          [ Parent ]

                •  This Is Simple (none)
                  Different libertarians obviously believe different things, but this is a pretty good basic statement:

                  We hold that all individuals have the right to exercise sole dominion over their own lives, and have the right to live in whatever manner they choose, so long as they do not forcibly interfere with the equal right of others to live in whatever manner they choose.

                  This is from the big-L Libertarian site. Go look here for more.

                  Liberal Thinking

                  Think, liberally.

                  by Liberal Thinking on Wed Dec 15, 2004 at 02:19:14 AM PST

                  [ Parent ]

                  •  What motivates Libertarian voters (none)
                    I'm not talking theory here, rather what pushes people into identifying with the LP.

                    At least for Wisconsin, most members are either self-employed, or run quite small businesses. While they resent having to pay taxes, what they really hate is the amount of time spent in dealing with paying taxes, documenting expenses, and documenting compliance with all the other regulations covering their business.

                    •  Its' more than that (none)
                      Ive talked to libertarians across the board. A very few are republicans in sheeps clothing. But thats true of the democratic party as well.

                      The common thread i find among libertarians is distrust of government, of corporations, of americas ruling class. It is distrust of those who desire power over their lives. Some its over regulation as you said. Some it is the governments desire to stick its nose into every aspect of their lives. Some distrust an armed government that wants to disarm its citizenry. Some it is the fear of the foolishness and fear-based-legistlating mobs tend to create.

                      The striking thing about democrats who dont understand libertarian thinkign is that libertarians were once , and recently, a large part of the core of the democratic party.

                      The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

                      by cdreid on Wed Dec 15, 2004 at 03:43:44 AM PST

                      [ Parent ]

                  •  Roads (none)
                    I don't get that philosophy at all.

                    Let's say I like roads. I like it when the government builds and maintains roads.

                    Joe down the street hates roads - or, more accurately, he hates paying taxes which support road building and repair.

                    If I vote for a politician who plans to impose a road-building tax, I've just utilized my right to exercise "sole dominion" over my life, so I've permissibly followed the first part of that credo.

                    But when that politician imposes a road-building tax, he is now "forcibly interfering" with Joe's right to live however he chooses. Thus, I have impermissibly violated the second part of that credo.

                    My point is that no matter what I do or desire, it will necessarily conflict with at least one other person's desires. And if I vote into office people who carry out my desires, those elected officials will necessarily "forcibly interfere" with the desires of those other people.

                    There's no way to win here.

                    •  I'm With You Up to the Last Point (none)
                      There are plenty of things you can do that won't conflict with anyone else's rights. It's true that in a modern society it's pretty hard to make that work. That's why you don't see people migrating to the LP in droves.

                      LP voters seldom make up more than 5% of any election. But if the Democratic Party wants to attract more libertarian votes, I suggest we think of ways to achieve liberal goals that don't involve government coercion. At the same time, I think we need to emphasize the coercive power of corporations and ask the question: "Would you rather have the government coerce you or a corporation? At least with the government most of those affected get a vote."

                      I'd also specifically address the "right to work" issue by saying: "If everyone has a right to associate with whomever they please, then that right applies to workers just like it applies to employers. If you have a majority of workers who only want to associate with union members, that's a strong argument to give them a union."

                      Libertarians strongly believe in doing the right thing. We need to be very clear about what the right thing is.

                      Liberal Thinking

                      Think, liberally.

                      by Liberal Thinking on Wed Dec 15, 2004 at 05:12:21 PM PST

                      [ Parent ]

                      •  Lib (none)
                        There are plenty of things you can do that won't conflict with anyone else's rights.

                        I'm really not sure what those might be. Someone will always be unhappy with something I like. And even if you can think of some things, a lot of even the most "basic" things do piss other people off - like the roads example, above.

                        If the simplest things that many of us expect (eg, taxes to pay for roads) infringe other people's rights, then I don't find the libertarian philosophy especially helpful in determining what's appropriate.

                        •  The Hard Cruel World (none)
                          Apparently 90% of people agree with you.

                          Libertarianism is a great philosophy for a world with lots of room. It's hard to imagine it working in a modern large city where you can hardly breath without violating someone's rights.

                          But I hardly think that you fill your day violating other people's rights. You wouldn't get invited to the family gathering at the holidays if you did.

                          The value I've found in libertarianism is a point of view for looking at proposed actions. It might not be possible to put in a road using strictly libertarian principles, but it might do to ask who's rights we're paving over and what we can do about it.

                          Liberal Thinking

                          Think, liberally.

                          by Liberal Thinking on Thu Dec 16, 2004 at 05:18:53 PM PST

                          [ Parent ]

                          •  Once again (none)
                            Please people try actually talking to libertarians or learning something about their philosophy or.. better yet.. your government.

                            Even the most hardcore libertarians strongly support a standing national army and see that as one of the core jobs of the federal government. Now.. heres the kicker.

                            The federal highway system was created and is Directly descended from the need of the US military to rapidly move across the nation. Nothing indirect or hidden. The highways you travel on are designed first around military needs.

                            Please please stop setting up straw horses.

                            The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

                            by cdreid on Thu Dec 16, 2004 at 08:12:07 PM PST

                            [ Parent ]

      •  Speaking of which (none)
        there is a case out of the 6th on the dormant clause and the race to the bottom (i.e. tax breaks for corporations who locate in within the tax authority's jurisdiction)- Cuno v. Daimler-Chrysler. The court ruled that giving benefits to favor local states was a violation as just as taxing out of state entites was an undue burden.

        "Once in a while you get shown the light In the strangest of places if you look at it right"

        by molly bloom on Tue Dec 14, 2004 at 05:16:54 PM PST

        [ Parent ]

    •  That wouldn't take a broader interpretation. (none)
      Indeed, the Congress would have the authority to legislate on the matter even under a much narrower interpretation of the Commerce Clause than Wilburn's.
      •  Corrected (none)
        That may have been the issue--something about legislation.  Again, I don't remember the particulars of the piece I heard.  It was about ending state and local giveaways, but it may have been either judicial or legislative.

        Sadly, at the moment my job keeps me too busy to do much digging on it.

  •  Scalia the Flaming Hypocrite (4.00)

     Scalia, who loves saying, "Don't ask the Court to make law, ask your legislators to," is quick to strike down laws (i.e. get all Activist) when, as a Right Wingnut Republican, he simply doesn't like the law.  Without going into minutia about it (don't have the time or inclination to anyway), Scalia -- the non-activist [heh, heh] -- was in the majority that struck down statute to ban handguns near schools and gutted the Violence Against Women Act.  He was also in the majority that stuck down the right of a disabled person to sue a state for money damages for discrimination, even when it's not even disputed that the discrimination is intentional.

      Hmmmmm . . . let's see.  Scalia says, "Just pass a law" if you want something (this is part of his "stock stump speech" and I've been there live and have heard him), but when such laws go against [1] hand gun manufacturers, [2] rapists, [3] or gov't officials (see also 'Bureaucrats') who would intentionally discriminate against the disabled to save on "gov't spending," then Scalia's the first to find some sophistry to uphold Right Wing GOP ideology and strike down the laws willy-nilly.  Oh, and if a State Court tells state officials how to count votes within that certain state, then Mr. State's Rights Scalia himself will intervene in a heartbeat to save a GOP Monkey's ass, lest such State Court bring "irreparable harm" to said GOP Monkey.

      The bottom line:  this is about a hard-core Right Wing socio-political agendist disguising himself as a "strict constructionalist" and "pro- States Rights jurist.  Bull.

     BenGoshi
    _______________

       

    "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." T.J.

    by BenGoshi on Tue Dec 14, 2004 at 01:30:47 PM PST

    •  Which is why (none)
      It will be interesting indeed to see how consistent he is when he has to vote on medical marijuana.

      As a few others have said, how could he possibly support any of the federalizing of local crime that has been going on since the FBI managed to become stars of stage and screen?

      I guess that libertarians and other anti-prohibitionists will be the ones looking most closely to see if Scalia actually has a judicial philosophy or is just a sarcastic old man who picks on whoever he feels like when he feels like it, as long as it isn't his good friend Dick Cheney.

      A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. - Emerson

      by freelunch on Tue Dec 14, 2004 at 03:59:41 PM PST

      [ Parent ]

      •  I just BET he'll knock down -- (none)

         -- the med mary j law, simply because it's against his "moral" philosophy.  That's my whole point:  he's more consistantly a Right Wing Catholic who wants to turn America into his own, private Knights of Columbus hall, than he is any kind of "reasoned and principled" jurist who just happens to believe in "judicial restraint."  Ha!  What a laugh!

         I guarantee you, if he comes down in favor of the local (i.e. state) law, he'll make sure he's in the minority, so he can act all "State's Rights", while eating the cake of knowing none of those cancer or AIDS victims are partaking of that sinful weed.

         BenGoshi
        _________________

        "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." T.J.

        by BenGoshi on Tue Dec 14, 2004 at 04:14:42 PM PST

        [ Parent ]

        •  Counterexample (none)
          •  Scalia is selectively good on civil liberties (none)
            He is surprisingly good on fourth and sixth amendment cases, but it bothers me that he is surprisingly good. I wish I could see a real commitment to civil liberties rather than an apparent obsession with process.

            A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. - Emerson

            by freelunch on Tue Dec 14, 2004 at 05:51:52 PM PST

            [ Parent ]

            •  Sixth Amendment (none)
              meaning Apprendi through Blakely?  If that's what you are thinking of, I believe his position on those cases can be traced to his hostility toward the administrative state and his traditionalism on questions of procedural due process.

              Join the American Constitution Society for Law and Policy: www.acslaw.org

              by yella dawg dem on Tue Dec 14, 2004 at 06:28:50 PM PST

              [ Parent ]

              •  Scalia believes he can devine original intent (none)
                And the Fourth Amendment makes clear that our homes are sacred (Kyllo), and that criminal defendants have an absolute right to have the facts of their cases decided by juries, not judges (Apprendi, Blakely, and likely Fanfan and Booker).  It's when the Constitution doesn't directly address a proposition (Brown, Roe v. Wade, and Lawrence v. Texas) that he gets pissy.

                For what it's worth, I just submitted a diary on the subject of judicial activism--particularly how the Right does it all the time with the paring down of the Commerce Clause and the trumping up of the 10th and 11th Amendments.  Scalia features prominently in both of these arenas.

                "The Red Sox have won baseball's world championship. Can you believe it?!" -- Joe Castiglione

                by PADC on Tue Dec 14, 2004 at 07:35:09 PM PST

                [ Parent ]

                •  Scalia (none)
                  Don't forget Crawford there, too - Confrontation Clause and all that. Two big pro-defendant decisions in 2004 (this and Blakely) and these folks have Scalia to thank. Whoda thunk it?
                  •  What a wonderful world (none)
                    I'm a criminal defense attorney, and I still find it weird that Scalia is our new King--for a little while, at least.  I'm sure he'll find a way to pop the balloon soon enough.  

                    "The Red Sox have won baseball's world championship. Can you believe it?!" -- Joe Castiglione

                    by PADC on Wed Dec 15, 2004 at 04:34:44 AM PST

                    [ Parent ]

                •  Yes (none)
                  The Rehnquist court has been far more activist than the Warren court ever was, in terms of striking down congressional enactments.  

                  Join the American Constitution Society for Law and Policy: www.acslaw.org

                  by yella dawg dem on Wed Dec 15, 2004 at 07:40:17 AM PST

                  [ Parent ]

                •  Excellent Diary. (none)

                   Just went there and skimmed, put it on my Favorites, and will read at leisure within the next day or two.

                   Bummed that it's already too late to "Recommend" it, but will look for more from you.

                   Thanks much.

                    BenGoshi
                  ________________

                  "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." T.J.

                  by BenGoshi on Thu Dec 16, 2004 at 02:50:11 PM PST

                  [ Parent ]

  •  Term limits on judges (none)
     There would be a constitional amendment on term limits for judges and the republicans would be out of office faster than you could whistle dixie if they messed with social security.

    It is a great threat tho and and an effective turn of phrase..a wonderful meme to establish.

    The Republicans want to make social security illegal.

    The Republicans want to make the minimum wage illegal.

    •  Illegal (4.00)
      It's also literally, absolutely, positively true. In the infamous Lochner case, the Supreme Court said that laws regulating maximum hours for bakers were illegal. Not just wrong, not just undesirable, but actually illegal.

      And there's a bajillion more of these cases, where laws that were legimitately passed by popularly elected legislatures were simply ruled illegal.

      A return to pre-1937 jurisprudence would make many of the things we cherish - Social Security, minimum wage laws, environmental regulations, child labor laws - illegal.

  •  This needs visuals (none)
    The Library of Congress (ironic) has some heart wrenching photos of children prior to child labor laws.  One features a four and five year old working in a cannery.

    Go here
    http://lcweb2.loc.gov/cgi-bin/query/f?fsaall,app,brum,detr,swann,look,gottscho,pan,horyd,genthe,var, cai,cd,hh,yan,bbcards,lomax,ils,prok,brhc,nclc,matpc:40:.temp~pp_Wiws:

    And thank you David.  Nice post.

  •  I'd like to go on the record... (none)
    ...and say that we've got to stop using the Roe vs. Wade decision as the end of the world.  We've become a one-note pony and - as your diary notes - there are way more scary things going on than that one decision....if the Bush administration were really diabolical (yeah, i know), they'd find a judge who was moderate on roe vs. wade but way over the top on everything else...and let him slide through that way.

    I recommend that the democrats on judiciary say literally nothing about a judge's stance on roe but concentrate the questions on other topics...we have to stop being associated with this topic.  It gives the Republicans air-cover so they can push more much horrendous acts.

  •  It's in their world view... (none)
    I agree, destroying the New Deal fits into their world view: government programs that provide help to the "undisciplined" must be abolished. The government is the strict father whose sole function is to support and protect only those citizens that are self reliant and prosperous. Government regulations are mere impediments to the pursuit of self.  

    more: www.politicalthought.net

    More here: www.politicalthought.net

    by ivolsky on Tue Dec 14, 2004 at 01:42:44 PM PST

    •  Don't Get Me Wrong Here... (none)
      FDR is still my favorite President, but there are parts of the New Deal that ought to be repealed.  In many cases, it's because they've turned into shells of their former selves (if you can call a law a self).  I was just writing about the problem with the National Labor Relations Act today on another post.  It's a great law, but since unions can't do anything with a fascist, bureaucratic NLRB in power for the forseeable future, I think labor would be better off on its own, avoiding the restrictions that come with state-sanctioned collective bargaining.

      And why is the government still subsidizing farmers to grow food we don't need?  Are there still any deserving small farmers left in this country?  Brazilians can grow more sugar than Cuban exiles in Florida and it won't cause hald the environmental damage.  It might even encourage them not to destroy the rain forest to graze cattle.

      I remember a 60 Minutes segment a few years back on the Rural Electrification Administration.  They turned the lights on in Rural America 70 years ago and its still there.  Why?

      I am not proposing a return to child labor, forced overtime and no Social Security.  I'm also not suggesting that the Commerce Clause should be interpreted the way Janice Rogers Brown and her ilk want.

      My point is simply that we need to think outside the box.  Just because FDR supported a particular program doesn't make it good.  Since we can't stop the conservative judges already in power from gutting the New Deal, we should spend more time thinking up NEW ways to help people.  If those laws are overturned thanks to 100 year old interpretations of the Commerce Clause, then maybe people will be worried about something else besides abortion rights.

      JR

      "Every country needs a good lefty. ... We even have some in our country." George W. Bush, 12/1/04

      by JR Monsterfodder on Tue Dec 14, 2004 at 04:32:12 PM PST

      [ Parent ]

      •  Yes and no (none)
        FDR said try something and if it doesn't work, try something else ( no its not an exact quote). That said, I don't the problem is so much the NLRB, but the people in charge of the NLRB right now. Also, Dems have not supported unions much of late.  A federal agency can become the captive of the regulated and non-feasance is as good as malfeasance if you want to render an agency useless.

        "Once in a while you get shown the light In the strangest of places if you look at it right"

        by molly bloom on Tue Dec 14, 2004 at 05:26:59 PM PST

        [ Parent ]

  •  I think too many people focus (none)
    on the Roe v. Wade issue.  Not only is the commerce clause at risk, but everything that led up to the Roe v. Wade decision.  This was not just an isolated case but one composed of parts created by a "zone of privacy argument" important to the protection of a lot of our privacy rights in general.

    We need to start using some of these arguments to drive wedges between all those republicans.  Though most wingers are ardent haters of Roe, many moderates are just not as passionate about Roe as liberals and progressives.  But lots of moderates cringe at the thought of a Supreme Court that erodes other privacy protections.  CATO is ironically one of the biggest opponents of the govt's overreach re the Patriot Act.

    •  Outside the context of Griswold/Roe (none)
      Thomas is the Court's strongest champion of the Right to Privacy. See his dissent in CITY OF INDIANAPOLIS v. EDMOND.

      Taken together, our decisions in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez-Fuerte, 428 U.S. 543 (1976), stand for the proposition that suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops.  I am not convinced that Sitz and Martinez-Fuerte were correctly decided.  Indeed, I rather doubt that the Framers of the Fourth Amendment would have considered "reasonable" a program of indiscriminate stops of individuals not suspected of wrongdoing.

      Respondents did not, however, advocate the overruling of Sitz and Martinez-Fuerte, and I am reluctant to consider such a step without the benefit of briefing and argument.  For the reasons given by The Chief Justice, I believe that those cases compel upholding the program at issue here.  I, therefore, join his opinion.

      •  How bizarre can it get (none)
        It's pretty disingenuous to say that the decisions that you are about to support were probably wrong, but since the appellants didn't bring it up (probably because the Supreme Court has a history of making impossible distinctions rather than actually admitting that a prior case was just plain in error) you won't agree with the majority decision that actually limited the abuse of the Fourth Amendment.

        A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. - Emerson

        by freelunch on Tue Dec 14, 2004 at 04:19:28 PM PST

        [ Parent ]

    •  Remember, Roe == Griswold.... (none)
      In fact, Roe is heavily based on the Griswold v. Conneticut.  For those not familiar with Griswold, it held that married couples could have access to birth control w/o interference by the state and set up the "zone of privacy" which was exploited by Blackmun in his decision in Roe.

      Personally I think that at this point the right to abortion has been pretty fairly adjuticated.  To roll back Roe would bring Griswold into question since many birth control methods available today prevent the implantation of a fertilized embryo (a human life in wingnut terms) in the uterus.  IUD's, the pill, Norplant and many others would be at risk of being declared illegal should Roe be overturned.  If Griswold is overturned (and it would almost have to be if Roe is overturned) things get a whole lot worse for everybody, both gays and straights.

      --John

  •  Next we need to talk (none)
    about the "Takings clause" that they want to use to cancel environmental regulations and zoning laws. They are truly evil.

    "If I pay a man enough money to buy my car, he'll buy my car." Henry Ford

    by johnmorris on Tue Dec 14, 2004 at 01:44:31 PM PST

    •  Takings (none)
      No joke. This might even be more stealth than the attack on the ICC.
      •  asdf (none)
        They're kind of boxing themselves into a corner on takings jurisprudence.  Scalia has that Lucas v. South Carolina Coastal Commission opinion, holding that it's only a taking when there's a "100% wipeout" of property value.  That principle is VERY easy to turn into a sword against a takings claim.  They also haven't reversed Penn Central (the case that saved Grand Central Terminal in NYC from being torn down) or really had a Lopez equivalent in the area yet.  It's worrying (especially at the lower court level), but not imminent disaster.
    •  Nuisance Abatements (none)
      Businesses would hate to see the end of the EPA and federal pre-emption. Modern nuisance law would end up putting every identified polluter into court as those with standing sue for nuisance abatement. Superfund enforcement would look like a country dance compared with an opportunity for the NRDC to sue each polluter for abatement and damages.

      Sure, some backward states might suffer a bit more pollution until someone who is rich enough is victimized by an industrial polluter, but private enforcement was the threat that made the EPA palatable 35 years ago. I strongly doubt that industry would like to see federal pre-emption disappear in this area.

      A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. - Emerson

      by freelunch on Tue Dec 14, 2004 at 04:28:40 PM PST

      [ Parent ]

      •  Eliot (none)
        I strongly doubt that industry would like to see federal pre-emption disappear in this area.

        Good point - which is why industry is fuming at Eliot Spitzer for "over-reaching" when he sues polluters than the EPA consistently ignores.

  •  That scares me (none)
    I can't think of any other way to summarize it. I was reading that and I was just like WOW. Say goodbye to 70 years of steady progress for the little guy.

    If you ever wanted to know just where the heart of the GOP lies, this is it.

    technology. politics. culture. life. dimensionsix dot net.
    "the christian right is neither." -- moby

    by storm2k on Tue Dec 14, 2004 at 01:57:28 PM PST

    •  If the New Deal had led to 70 years (none)
      of steady progress for the little guy, we'd not be seeing little guy votes for the Party which seeks to roll it back. In some senses, at least, it eventually empowered the interests of the protective structures, aka the buaurocracy, to roll over the little guy. A future Dem administration, if it fails to confront, and resolve this contradiction, will find itself once more defeated by the backlash.
      •  What backlash? (none)
        Is the average guy agitating against the minimum wage? When polled, "little guys" say that they strongly support the Democrats' New Deal-descended social and economic aims.
        •  asdf (none)
          Our City Govt. just enacted its own minimum wage, takes effect Jan. 1. Restaurant owners, by most definitions little guys, are not happy. The bigshots are taking the lead in suing to stop it. I support the ordinance, but yeah, there's genuine little guys agitated and agitating.

          Self=employment tax, another New Deal legacy, cuts deeper than FICA for those employed by others, and is not wildly popular with those who have to deal with it.

          There's no such thing as "The average guy."  Some are of average height. Some earn average incomes. But each is unique.

  •  This is why we need an Ohio recount (none)
    John Kerry is our only hope. Stop talking about "party reforms" and "moving on" - George W Bush and his judges will kill us all before 2006.

    We need to win, badly. We won, but there was a fraud. Bring your gun and be prepared to fight.

    http://www.lcurve.org - US Income Distribution Visualized

    by Joe B on Tue Dec 14, 2004 at 02:07:23 PM PST

    •  Its a marathon, not a sprint. . . (none)
      One election won't win or lose this thing for us.

      Besides, if you are right, don't ya think Rove has an Ohio back-up plan?

      If Kerry won, they would tar him with "failure in Iraq" and try again in 2008. Like I said, this will be a generation-long political fight.

      •  yes but? (none)
        Whoever won should be the president, whether or not this person will be "fucked over" by the GOP.

        If you don't agree with me then please explain why you should still be called a "democrat" (without a capital d)?

        (I'm cutting and pasting here, from my earlier post, since the question stays relevant)

        http://www.lcurve.org - US Income Distribution Visualized

        by Joe B on Wed Dec 15, 2004 at 04:25:34 AM PST

        [ Parent ]

        •  Not all eggs in one basket. . . (none)
          Fight for Ohio? Sure, absolutely.

          We win the Ohio recount battle, great, but the war has just begun. We lose Ohio recount, F*ck, but the war has just begun.

          The GOP-ers have been laying plans for decades.

          One election won't be enough to declare victory and live happily ever after. Their goal is to dismantle the New Deal. Wining this fight (for good) will take perhaps decades.

          President Kerry will still have a GOP Congress.

          •  I see your point (none)
            but what I suggest is the value of democracy. Whoever is elected President should be President whether or not his own party benefits from it.

            http://www.lcurve.org - US Income Distribution Visualized

            by Joe B on Wed Dec 15, 2004 at 11:54:16 AM PST

            [ Parent ]

            •  True, but what if no one will listen? (none)
              Being angry is understandable. Being smart is better. The Alamo (or Masada) are bad historical examples to emulate and the MSM is already gunning for the Ohio paranoid-iacs.

              Fight on turf of your own choosing. IF we have proof in Ohio, nail them to the effing wall and destroy the machinery that allowed the theivery to operate.

              IF we do not have the proof (and remember that the MSM is the "real" jury and is stacked against us) keep our powder dry and remember that we believe what we believe because what they believe will lead to bad consequences.

              It will, and has already.

              = = =

              My own trollish plan for Ohio? (If adequate proof cannot be found now. . .)

              Tell every GOP primary candidate in 2006 that we have heard that Blackwell & company favors their opponent in that primary (or we hear their opponent has been shoveling money to Blackwell). Cause stolen vote fear before the 2006 primary.

              No one uses cocaine only once. If Blackwell has done this, he will do it again and destroying the machinery that allows thievery is bigger and more important than November 2004.

    •  Bring a gun; go to jail. . . (none)
      By their fruits you shall know them

      AARP is against Social Security reform. Four more years of Iraq and the rank and file military will hate GWB. Deficits will crush the economy.

      If we can prove Ohio fraud, nail them to the effing wall. If all we have is circumstantial evidence, look for more, but leave your guns at home.

  •  YES! And Thank You! (none)
    This is what we need to be talking about. Your post hits the nail right on the head!
    Hooray for you Kos!

    They are on a mission to eradicate the New Deal, which they are going after with a slow burning and methodical vegence.

    And these are the issues that we need to frame more clearly!

    How can we change this......well we can start with words..spread the word. So say it often. Minimum wage....illegal.

    Your point about making Social Security illegal.....I think is a great way to make the argument.
    The minimum wage illegal........ouch! Not a very popular idea!

    Especially with so many folks crossing our borders to desparate for work, and willing to work for slave wages.

    Why do these folks hold such a huge grudge against Roosevelt and his New Deal. And against the peace protesters of the Viet Nam war. Where does this come from and why with such a brutal conviction and force?

    I fear Ted Olsen as a potential nominee. He is ruthless and all about Bush.

    And while we were distracted, arguing about religion, and how they have hi-jacked Jesus. They use the distraction as a ploy to pack the Supreme Court with "Crooks for Commercel" judges.
    Wage are falling. Our wages are falling!

    one liberal fighting against the Christian jihadists

    by missliberties on Tue Dec 14, 2004 at 02:32:51 PM PST

    •  Odds are long (none)
      on Ted Olson.  The bookies know best, and a bet for Olson currently pays something like 600/1.  Luttig is favored, followed by Wilkinson and Alito.

      Join the American Constitution Society for Law and Policy: www.acslaw.org

      by yella dawg dem on Tue Dec 14, 2004 at 03:01:25 PM PST

      [ Parent ]

    •  and also (none)
      thanks a million DavidNYC!

      How in the heck does the government expect to generate revenue under this scheme? From banks and the interest on their loans?

      This seems crazy!

      one liberal fighting against the Christian jihadists

      by missliberties on Tue Dec 14, 2004 at 04:37:24 PM PST

      [ Parent ]

  •  Forgive my ignorance but I have a few Q's (none)
    It is no secret that there are many on the right that want to get back to the era of the pre-new deal. My Question is Why ? what is the motivation ?

    On first glance, one supposes that the wealthy make out like bandits, but that is a very slim minority indeed. So if this is the case, it also supposes that the rest of the population "the proliteriat" just suck it up ?

    Yet a quick review of a history book shows that the working stiff would be on the verge of revolution pretty fast. The Federalist types would be out of power for decades, and the new deal would be brought back in even more power.

    Is this so obvious that they miss it ? Or are they simply utopians that think rolling back to this era will somehow work out differently this time ?

    I really fail to see their motivation, beyond principle. they may get a decade or a little more out of it, ie the boiling frog theory (heat the water slowly) but at some point, the frog does die.

    Love to hear what others think, this has baffled me for quite some time.

    I am a Reform Democrat

    by Pounder on Tue Dec 14, 2004 at 02:56:02 PM PST

    •  Roll back vs. reverse (none)
      I don't think it's fair to say all of the Federalist Society wishes to reverse the New Deal. True for the more extremist members, but many just wish to roll back what they see as the over-reach.
      •  that occurred to me too (none)
        But how do even they know when they have reached the line ? What is that line ?

        Personally, I think they already crossed it, but slap me silly and call me a liberal I guess.

        I think we are a society of people, not a nation of individuals, I guess they dont

        I am a Reform Democrat

        by Pounder on Tue Dec 14, 2004 at 05:17:27 PM PST

        [ Parent ]

        •  They are plutocrats (none)
          Feudalists. It really is that simple.

          We have a nation where the top few percent own 98% of the nations wealth. They rule the nation. Are in effect immune to even the laws they have allowed set in place.

          It's not enough.

          They want more. More power. More wealth. An almost genetic right to wealth and power for their families.

          Eliminating labor laws allows them to command labor for a pittance. Eliminating liberty ensures they can monitor and control those who would upset the system, and deal with them when they do. Eliminating environmental law ensures they can do as they will to gain wealth. While they can afford to live in paradises. Eliminating religious freedom gives them the most historically powerful tool to control the populace.

          Follow the money. It's about power and money. It really is that simple. And quite a few of "our guys" have been recruited onto their team.

          The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

          by cdreid on Tue Dec 14, 2004 at 09:39:34 PM PST

          [ Parent ]

    •  Idealogues rarely live in reality (none)
      There's your answer.  It's the same reason why the Bush administration is totally incompetent and can't accomplish anything.  

      In Britain they admit to having royalty. In the United States we pretend we don't have any, and then we elect them president.

      by Asak on Tue Dec 14, 2004 at 05:04:14 PM PST

      [ Parent ]

      •  that's the scary answer (none)
        Because on the surface, they are pretty smart guys.

        Rumsfeld, Cheney, Powell, Ashcroft, et al, are all smart guys, yet so ideological to the point of incompetance.

        Hard to understand when you arent in the faith based reality world.

        I suspect this is probably the truest answer for most of these people.

        I am a Reform Democrat

        by Pounder on Tue Dec 14, 2004 at 05:19:10 PM PST

        [ Parent ]

    •  My guess (none)
      My guess is that this will be a tough one for the Right.  

      There are quite a few old-time Conservatives, the states rights' types, who really want to be able to do things like outlaw abortion in their states and put the Ten Commandments in the courthouses, and who therefore want to disconnect the federal government and the states as much as is possible.  They are part of the traditional "The best government is the least government" group.

      But there are others, call 'em neoconservatives, who really have no trouble with a big federal government, as long as it is doing (what is in their view) moral work.  In their view, it makes no sense to limit federal power if they have it.  Why allow certain states to permit prayer in schools and others to ban it, say, when you could mandate it nationwide?

  •  Civil rights implications (none)
    The unspoken reason that the right wants to roll back Commerce Clause jurisprudence is that most of our greatest civil rights legislation now is based solely on that Clause.  For example, the Civil Rights Act of 1964 almost certainly is unconstitutional under contemporary (and reprehensible) equal protection jurisprudence.  The same is true for the ADA.  So if Congress's power under the Commerce Clause is narrowed, this type of legislation will come under a lot of pressure.

    Having said that, I do have some sympathy for the idea of limited federal government power, particularly in the area of criminal law.  The marijuana case is an excellent example of how the federal government's criminal law authority is growing exponentially, and in irrational ways.  No one ever lost reelection by being too tough on crime, so the incentive is always for Congress to keep ratcheting up the penalties and creating new crimes.  In contrast, states have to balance their budgets, so there's actual countervailing political pressure when too many people are in jail, as many states have seen in the last few years.  If the Court isn't going to protect us against these laws substantively, and it's clear that it won't, then maybe it should find them beyond the scope of Congress's authority.  

  •  California Parallel (none)
    This sort of bait-and-switch is standard operation procedure for court packing.

    Here in California, the corporations contriuted massively to the 1986 recall campaign of Supreme Court Justices Rose Bird, Joseph Grodin and Cruz Reynoso. The ostensible issue was the death penalty. There were no executions between 1977, when the death penalty was reinstated, and 1986. Today, over 18 years later, there have been about a dozen executions. That sure showed them!

    Operation 'Fool Me Once' -- Targeting Papers That Endorsed Bush in 2000

    by Paul Rosenberg on Tue Dec 14, 2004 at 03:57:56 PM PST

  •  Thomas and taking down Commerce clause (none)
    Scare me to death!

    Proud to be a Liberal!.. only the GOP could think something derived from Liberty is bad

    by lawnorder on Tue Dec 14, 2004 at 04:20:32 PM PST

  •  the "good old days" were terrible (none)
    and the future can be worse:

    At least some of us would fight. Even against hopeless odds. And die. And whatever remained of the human race would toil away for their masters for decades, perhaps even centuries, into the future. Until finally the brutality, hopelessness, and stagnation of it all caused the world economic and technological base to break down irretrievably. After that our descendents, both masters and slaves, would fall back into utter techno-primitivism, much as depicted in the Mel Gibson "Mad Max" film series. Humanity could conceivably continue on for millennia in such a state, albeit with a massively reduced population, numbering perhaps only in the hundreds of thousands worldwide, and living for quite some time on salvagable remnants from the civilization that was. But all the easily acquired and utilized raw resources of industry would be gone. The human race would once again become overwhelmingly composed of subsistence farmers and textile laborers akin to those of ages past, within only a generation or two. Civilization's legacy of mass extinctions and biospheric devastation from global deforestation and the accumulation of industrial and nuclear wastes would doom human numbers to dwindle ever smaller over time, until finally they fell below the critical mass necessary to sustain the race. The last few people would die with a whimper, probably of starvation or disease, likely possessing no knowledge whatsoever of the towering aspirations their long dead forebears had harbored for themselves, nor how they had paved the way for this literal hell on Earth for their posterity.

    http://jmooneyham.com/brightref.html#section36
    "The enormous hidden costs of right wing governance"

    "With Liberty and Justice for All"

    by ohshenandoah on Tue Dec 14, 2004 at 04:47:12 PM PST

  •  Dude! (none)
        They didn't retire poor. They worked 'till they died.
  •  This is the dark (none)
    disingenuous dichotomy of the current "conservative" wing of the Court in a nutshell. Whenever the justices that comprise this body are confronted with cases pitting individual rights against governmental power, the so-called conservatives unequivocally side with the power of the government.

    However, in cases involving the power of the government to regulate corporate activities, these same people are never at a loss to configure some convoluted rationale that falls on the side of protection of unabated corporate freedom.  

    Granted, this analysis is based upon a shotgun approach; nevertheless, the conclusion is accurate.    

  •  And just what are we going to do? (none)
    It seems like people here still haven't realize that Bush was reelected and he has large majorities in both houses of congress.  At least 5 Democrats in the Senate are middling moderates who can be picked off.  

    They're going to do whatever the hell they want and there's not a damn thing we can do about it.  I'm sort of hoping they do their worst.  This country deserves some serious punishment for its stupidity.  It may be the only way to usher in a new era of progressive values.  

    In Britain they admit to having royalty. In the United States we pretend we don't have any, and then we elect them president.

    by Asak on Tue Dec 14, 2004 at 05:01:34 PM PST

    •  Never under-estimate (none)
      the power of "self-styled" conservative ideologes to do themselves in. The Republicans get control of the White House and both houses of Congress approximately once very fifty years. Two generations of voters that suffered the consequences of their reign have to die off before the pattern repeats itself.
    •  But there is something we can do (none)
      We can talk about it. We can write letters to the editor.
      It all starts with a words.

      As US imperialism takes over the world and in fact our own country is being overrun by business bullies with connections in high places.

      As Paul Revere once said, "The British are coming. The British are coming!"

      The revolution started with some well spoken words.

      My bet is we can do it again!

      one liberal fighting against the Christian jihadists

      by missliberties on Tue Dec 14, 2004 at 05:49:23 PM PST

      [ Parent ]

  •  How we got here... (none)
    Left out of this long discussion is the whole fact that medical marijuana users have been forced to take the commerce clause to the Supreme Court in order to get their medicine and not be harrassed by the Federal Government.

    You want to convince me that giving Congress and the Feds power is important to the rights and welfare of the little people, then explain the war on drugs, OK?

    Right now, the only place where any kind of sanity exists in this area is in some of the states, and BOTH PARTIES HAVE BEEN AT FAULT.  The war on medical marijuana patients in California began under Clinton and was escalated under Bush.

    The DEA and FDA and NIDA have actively blocked research (for as long as 30 years), and then the feds claim there isn't research to support medical marijuana.  California said "The hell with that -- this is keeping people alive" and let them use marijuana.  So the feds came in with armed agents and ripped up their plants.

    That's the wonderful centralized federal government working on behalf of the people.

    The federal government has practically admitted that they don't want to cut into pharmaceutical profits (which fund both parties, although especially the Republicans).

    Where have the Democrats been?  Hiding under a rug because they're afraid that they'll be lumped with pot-smoking hippies.  In the meantime, patients are dying, and the racist drug war has put a huge percentage of our young black men in prison (so we now have 5% of the world's population and 25% of the world's prison population).

    I used to believe in the federal government and Congress.  But I've got to be convinced again.  Convince me.

    •  Hey pete (none)
      Come around more often. I'll hold 'em while you work 'em over.
    •  Guither (none)
      IF the judiciary actually enforced the constitution we wouldnt have "drug law". The very same interpretation that recognises the right to abortion should clearly and logically strike down drug laws. Which at no point in the constitution is the congress given the power to regulate in the first place. Just as they ignored the constitution to allow the patriot act to crush individual liberty, as they ignored it to give corporations personhood, as they ignored it to allow taking of property without due process of law under CAF, they ignored it to create racially motivated drug laws.

      The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

      by cdreid on Tue Dec 14, 2004 at 09:44:48 PM PST

      [ Parent ]

  •  Time to re-think the Democratic Abortion Line? (none)
    Let's talk politics for a moment:  The GOP has successfully built a winning coalition based largely on the widely held belief that abortion on demand should be illegal.  They have used that as a wedge issue to get otherwise likely Democratic voters to vote Republican.  That, plus positions on same-sex marriage, very much helped this president win the 2004 election.

    Now, let me commit Democratic heresy here (I can, because I'm a Republican anyway.  Additionally, I'm one who grew up in a Kennedy Democrat, blue-collar household; my Dad was a labor ogranizer who worked for Jack and Bobby in their campaigns, but my father shunned the Democratic party when he felt it had been overtaken by the extreme left.  That, plus some local political issues, led to my family's party change.)

    The heresy is this: whyexactly, does the Democratic party continue to support abortion on demand when it is so obviously detrimental to it's political interests?  Why do Democrats reactively cling to the "pro-choice" Kool-Aide that kills so many Democratic candidates in rural areas and in the so-called "red" states?  Pragmatically, does it make any sense?  Moreover, why is there, apparently, no room whatsoever in the Democratic party for a pro-life position, as the GOP makes room for it's pro-choice wing?

    In my view, the notion that this is a "womens' rights" issue is losing ground and is more likely to continue to lose ground as advances in medical technology provide ever clearer in-utero photos of developing fetuses.  Moreover, the '70's era women who pioneered the women's rights movement are slowly but surely being subsumed by women who came of age in the 80's and 90's who largely hold a more conservative view, especially when it comes to things like late-term abortion.

    So, let me wave the red tablecloth in front of the raging bull; let me raise those questions.
    For the record, I'm what you would call pro-life; I don't believe, though, that overturning Roe is the way to go.  I think that the nation's culture should be influenced so as to encourage the choice of birth, adoption, affordable childcare and government-paid childhood healthcare.  (My pro-life stand extends, too, to my opposition to the death penalty.  I don't think the state has the right to kill people.)

    It's part of why you guys are losing.  I know that in the household where I grew up, all of the programs and spending of the New Deal were widely supported, but the Democrats lost us on abotion and the Welfare State.

    Let the pummeling begin!

    "He serves best the party who serves best the country". Rutherford B. Hayes

    by Thinking Republican on Tue Dec 14, 2004 at 05:44:59 PM PST

    •  aoeu (none)
      The heresy is this: why exactly, does the Democratic party continue to support abortion on demand when it is so obviously detrimental to it's political interests?

      How "thinking" are you really?  You know very well that that statement is incorrect.

      Why do Democrats reactively cling to the "pro-choice" Kool-Aide that kills so many Democratic candidates in rural areas and in the so-called "red" states?
       

      Herseth.

      Moreover, why is there, apparently, no room whatsoever in the Democratic party for a pro-life position, as the GOP makes room for it's pro-choice wing?

      Have you met Harry Reid?

      no haikus now,
      join your local democratic party.
      There are fights in 2005 coming up.

      by TealVeal on Tue Dec 14, 2004 at 05:56:41 PM PST

      [ Parent ]

      •  No, I have NOT met Harry Reid... (none)
        ...nor do I recollect ever seeing any prominent Democrat oppose abortion in any large forum.  I do vaguely recollect a pro-life Democrat being either banned or having his comments edited to elimate pro-life comments in the Democratic Convention in 2000.  (I think he was the Governor of PA, if memory serves.)

        You've got pro-life guy?  Bring 'em out in public! If you do, you'll neutralize a lot of the Republican machine that uses abortion as a wedge issue to serve what are really the interests of the oligarchy.

        "He serves best the party who serves best the country". Rutherford B. Hayes

        by Thinking Republican on Tue Dec 14, 2004 at 06:15:16 PM PST

        [ Parent ]

        •  aoeu (none)
          You are thinking of the Gov of PA who wasn't allowed to speak during one of Clinton's conventions.  The man had not endorsed Clinton, other pro-life individuals who had did speak.

          You didn't comment on #1 so I assume you agree with me.

          no haikus now,
          join your local democratic party.
          There are fights in 2005 coming up.

          by TealVeal on Tue Dec 14, 2004 at 06:17:54 PM PST

          [ Parent ]

          •  No, I don't agree... (none)
            ...all the prominent Democrats I've ever seen and all the Democrats I know basically support abortion.

            Also, I just checked Harry Reid's Senate website.  He favors a reduction in unwanted pregnancies, but does not prominently mention (or mention at all, for that matter) that he is pro-life.

            Where are your Democratic leaders who will say, unabashedly, and in public, that they oppose abortion and that they think their party's position is wrong?  Where is your "loyal opposition"?

            "He serves best the party who serves best the country". Rutherford B. Hayes

            by Thinking Republican on Tue Dec 14, 2004 at 06:29:02 PM PST

            [ Parent ]

            •  aoeu (none)
              Do you think Democrats support abortion on demand?

              Yes or no.

              no haikus now,
              join your local democratic party.
              There are fights in 2005 coming up.

              by TealVeal on Tue Dec 14, 2004 at 06:30:50 PM PST

              [ Parent ]

              •  Yes... (none)
                ...at least the ones I know.  Carolyn Maloney is my Representative in Congress, though. ;)

                "He serves best the party who serves best the country". Rutherford B. Hayes

                by Thinking Republican on Tue Dec 14, 2004 at 06:45:20 PM PST

                [ Parent ]

                •  aoeu (none)
                  Well as a party it's not the case.  The party line is to support Roe, which does not make for drive through abortions.

                  no haikus now,
                  join your local democratic party.
                  There are fights in 2005 coming up.

                  by TealVeal on Tue Dec 14, 2004 at 06:58:46 PM PST

                  [ Parent ]

                  •  Maybe not... (none)
                    ...but that's not the message that comes through.  The message that comes through is that the Democrats support abortion, period.

                    I oppose Roe in the sense that it requires states to permit legalized abortion, even where that notion is anathema to the overwhelming majority of the people who live there (e.g., Wyoming.) I think most Americans would agree with that view: don't force it on us.  If New York wants to do it; fine, but don't force those of us in MS and SC and WY and the Dakotas and KS to buy into it.

                    I guess all this goes back to some of my earlier posts on states' rights; that is, the federal government shouldn't overstep it's authority to impose it's will on people where the Constitution does not clearly allow it.  It's one of the fundamental differences between the GOP and  Democrats (and from some of the more rabid replies to my posts, one of the most deeply divisive.)

                    Cheers!

                    "He serves best the party who serves best the country". Rutherford B. Hayes

                    by Thinking Republican on Tue Dec 14, 2004 at 07:15:45 PM PST

                    [ Parent ]

                    •  don't force it? (none)
                      "I think most Americans would agree with that view: don't force it on us"

                      And for those in Wyoming who do want the right to an abortion, what then is the response to them saying this same thing to their fellow Wyomingans?  

                      Just curious.

                      •  aoeu (none)
                        Use a coat hanger.

                        no haikus now,
                        join your local democratic party.
                        There are fights in 2005 coming up.

                        by TealVeal on Tue Dec 14, 2004 at 07:31:40 PM PST

                        [ Parent ]

                      •  Go to New York... (none)
                        ...or California, most likely. Or, preferably, think about keeping the baby or giving it up for adoption.  It's really not vital that it be killed, you know.

                        What if they're poor and can't afford the ticket?  Hey, I would have liked to have Wintered in the Florida Keys when I was younger and seen if those "Girls Gone Wild" were for real...but it ain't gonna happen.  Just because I have the right to do something doesn't mean I have the ability to do something.

                        You have to respect the local culture and the local community and it's right to govern itself as it sees fit; otherwise, you're arrogant,obnoxious and undemocratic.   Here in New York, a lot of people are opposed to the Iraq War; but, if you're drafted (assuming a draft were reinstated), you have to go. That's simply the reality.

                        "He serves best the party who serves best the country". Rutherford B. Hayes

                        by Thinking Republican on Tue Dec 14, 2004 at 07:43:57 PM PST

                        [ Parent ]

                        •  this is the sticking point, right here (none)
                          What if they're poor and can't afford the ticket?  Hey, I would have liked to have Wintered in the Florida Keys when I was younger and seen if those "Girls Gone Wild" were for real...but it ain't gonna happen.  Just because I have the right to do something doesn't mean I have the ability to do something.

                          Speaking of standing on principle, this seems like the reverse example.  This is the "hey, sucks for you dummy" republican principle that always repels me everytime I feel myself agreeing with some Republicans.  It always boils down to this.  

                          I'm talking about solutions.  Taking away abortion in Wyoming and then leaving it at that and wiping your hands and saying "well, it looks like we're done here.  Anything else that happens is not our fault nor do we give a rat's ass" ...this kind of callous mentality is absolutely unacceptable to most democrats.  I don't know what your dad learned working for JFK, but the idea that we just cut certain people off--the people who can least afford to be cut off--and then be on our merry way, this was not Jack Kennedy's vision of America.  I would be more inclined to listen to Republicans if they could prove to me that they cared about the women and the child rather than just scoring a political victory and lording it over unfortunate teenagers who get mixed up and are in a boatload of trouble.  Instead, you just get some weird abstract thing about winter in Florida.  Go tell that to the people whose lives are going to be devastated when Wyoming does in fact outlaw abortion (don't worry, Roe will be overturned, just  be patient)

                          •  Jack Kennedy knew... (none)
                            ...foremost what was politically possible.  That's why he didn't want to end the war in Vietnam before the 1964 election.  He would have gotten killed by people accusing him of "being soft on communism".

                            He also knew what was politically possible with civil rights in the South, and he frankly didn't want to go there...but he knew he had to to assuage the Democratic base and he knew that he could effect the change and still maintain power -- even though he handed the South to the GOP for the next 30 years.

                            Jack Kennedy was a pol and a damn good one.  And while you're right to revere him, as I do, you need to recognize that he got to be a great man by knowing how to acquire and maintain power. He was no weeping willow; he was a tough, smart, nuts and bolts pol. (I can't imagine him saying, "Gee, Dad, I really don't think we ought to have Giancana's guys help us out in Chicago..he's Mafia, you know?"  He would have said, "Gee, Dad, what does he want..and how can we get it to him without getting nailed?")

                            Some poor 15 year old girl gets pregnant in Wyoming?  It's a tragedy -- for her and the baby.  Can you change it?  NO!  Can you provide incentives so that the baby is adopted into a loving home? Yes. Can you provide contraception to her so she doesn't get pregnant in the first place? Probably.  Can you get her an abortion if she's been raped by her dad?  Probably.

                            But you can't do any of those things if you don't have a place at the table.  You surrender it all up to the extreme elements.  Time to grow up and smell the coffee.

                            Cheers.

                            "He serves best the party who serves best the country". Rutherford B. Hayes

                            by Thinking Republican on Wed Dec 15, 2004 at 06:38:07 AM PST

                            [ Parent ]

                          •  aoeu (none)
                            You do realize there are not enough people currently willing to adopt?

                            no haikus now,
                            join your local democratic party.
                            There are fights in 2005 coming up.

                            by TealVeal on Wed Dec 15, 2004 at 08:37:31 AM PST

                            [ Parent ]

                          •  Yes.... (none)
                            ...because they can do it in China without all the delays, nonsense, and "maternal rights" we impose on them in the United States.

                            "He serves best the party who serves best the country". Rutherford B. Hayes

                            by Thinking Republican on Wed Dec 15, 2004 at 09:58:57 AM PST

                            [ Parent ]

                          •  aoeu (none)
                            That "red tape" helps protect against baby selling.

                            no haikus now,
                            join your local democratic party.
                            There are fights in 2005 coming up.

                            by TealVeal on Wed Dec 15, 2004 at 10:34:30 AM PST

                            [ Parent ]

                          •  And it prevents adoptions... (none)
                            You know, sometimes there really is too much regulation.  I know half a dozen married couples with decent incomes that were forced to adopt overseas, even though they were willing to adopt any race or sex infant and two of them were even willing to adopt special needs children.  Given the time, expense, and hassle of complying with regulations "protecting babies from sale", and the risk that the mother might show up on their doorstep with her lawyer looking to assert parental rights, they simply went abroad.

                            On the other side of the coin, here in New York, a woman can keep her kids in foster care even though she's gone through re-hab half a dozen times; has a criminal record; abandons them repeatedly and is clearly unfit, at least to any sane mind.  But the state punishes the kids by shifting them from foster home to foster home (and school to school) unless she willingly surrenders her parental rights.

                            But you can't even talk about changing that situation.  The Democrats call you a "racist" because the overwhelming majority of children who would be rescued - and the women who would lose their rights - are black.

                            Go figure.  You tell me that your party makes sense on this issue.

                            "He serves best the party who serves best the country". Rutherford B. Hayes

                            by Thinking Republican on Wed Dec 15, 2004 at 03:26:01 PM PST

                            [ Parent ]

    •  Reasonable question, but (none)
      deserving of it's own diary. Too much upthread to reload.
    •  No he has a very good point (none)
      And kudos for coming in here.  I think one reason that the Dems get killed on the abortion issue with families like yours is that the democratic party is run by special interests, all of which are legitimate and most of which are right in in sich but none of which add up to a coherent ideology that seeks to find solutions to problems.  In essence, I think the Democratic Party is now, and has been for a while, less than the sum of its parts.  Abortion is a perfect example.  You say you don't want Roe overturned.  You in theory should support groups like NARAL.  After all, they are fighting to keep that from happening.  YEt, that is mostly all of what they do.   Meanwhile, none of us, liberals or conservatives, "like" abortion.  True, most liberals do not see it as murder.  Nonetheless, anyone who has had any experience with it (as I almost have had, and that counts) knows it is horribly traumatic.  The goal should be to find a way to reduce abortions that doesn't involve A) sending people to the gas chamber like Tom Coburn wants B) littering working families with kids they cannot support thus screwing them and the kids over.

      There is alot of middle ground here.  With a strong leader and a reform vision, the Dems could claim that middle ground rather than only fighting one side of the isse.  The same dynamic applies to guns, the environment, etc.  

      Finding solutions that most people want, e.g. less abortions with executing people; a clean environment without laying people off; safer cities without intruding on responsible gun owners and hunters--this would take most of the social issues off the table and focus on the economic issues.  

      Then we will find out who the selfish bastards and the "malefactors of great wealth" are in this country, those who see politics as a means of screwing everyone else over so they can get fatter and richer, and converesely we'll see who are those who see the government as the benevolent guardian of the little guy, the catcher in the rye, as it were.

      You say your family admired the New Deal.  If the democrats advanced more proactive, solution-based policies and ideals rather than just agendas for individual groups, but fought to the death for health care, minimum wage, worker protection, policing wall street, would you and your family come back to the democrats?

      I think this is the real test.  Are you out for yourself, do you think the point of this life and this country is every man for himself, the one who dies with the most toys wins?  Or do you belief that, as Obama said, "I am my brother's keeper"?

      •  Check out my homepage and my other posts.... (none)
        ...they'll tell you where I'm at.  Read especially the one on the oligarchy's great conservative con job.

        I am my brother's keeper, but only if he gets up off his lazy ass and finds a job.  Some little kid doesn't have a place to sleep or the money for her lunch at school?  You bet your ass I think it's the government's job to provide it.

        I'm rather at war with the extremists and the neocons of the GOP, but I can't imagine going over to the Dems in the party's current form.  You guys need to go after the GOP -- raise "class warfare" in reverse with respect to tax cuts for the uber-wealthy that, in turn, cause deficits that cause the rest of us to pay higher interest rates.  Find a sensible defense program - the GOP's "military transformation" is screwed from head to toe and weakens the military.  Find some wedge issues of your own that will outweigh "God, Guns, and Gays" when it comes to blue-collar voters -- for your party's good and the good of the country.

        And lose some of the extreme elements of your party or at least counterbalance them with opposing views.  Show that there is room for the average guy to support the Democratic agenda without having to let transvestites into the army. (I don't frankly care, but I'm a bit more worldly than the average guy...I live in New York, not Kansas.) I mean, you guys go so far to embrace every group that has an agenda! It's NUTS!  (I'm very tolerant of Gay Rights, for example; I even support Same-sex marriage.  But, for crying out loud, do you really think it makes sense to have Democratic pols marching in the "Gay Pride" parade when they tolerate a NAMBLA float and men in spiked heels and garter belts throwing condoms on the steps of St. Patrick's Cathedral??? Come on!!! Do you have any idea how many people that alienates entirely?

        I was at the anti-war march here in New York and my guess is that Karl Rove was probably masturbating over what he saw...signs with the portrait of the President of the United States in a target scope???  Women dressed like really, really butch lesbians (biker boots and the whole deal) kissing their very femine girlfriends for the camera??? Don't you guys get the visuals????  You honestly think that stuff plays in small-town Kansas???  I mean, I live here; I see it every day, so I don't give a damn what people do in private, but do we need to show it to all the world?  How many GOPs would stay GOPs if they showed some old fat-ass preppy going into his limo with champagne and two call-girls outside the Garden while some poor homeless beggar asked him for spare change with his "Homeless Veteran" sign tethered to his neck?  It happens all the time, but you never see it!

        Meantime, you let the oligarchy roll all over you by surrendering up the government to them because you feel this "need" to be "compassionate" to the disenfranchised.  You can be as compassionate as you like - that's fine - but for chrissake, don't go showing every friggin' guy you think you can help on TV.

        Cheers.

        "He serves best the party who serves best the country". Rutherford B. Hayes

        by Thinking Republican on Wed Dec 15, 2004 at 07:12:29 AM PST

        [ Parent ]

    •  How can a Republican commit Democratic heresy? (none)
      The heresy is this: whyexactly, does the Democratic party continue to support abortion on demand when it is so obviously detrimental to it's political interests?  Why do Democrats reactively cling to the "pro-choice" Kool-Aide

      This seems basic.

      Why would anyone abandon such a critical belief? What's the point of taking a stand on something so important, based on principle, if you'll just abandon it for expediency? Guess those civil rights agitators should've thrown in the towel when it became clear the nation wanted them to behave and keep quiet. Very unpopular. And the politicians shouldn't have signed onto that agenda because it would cost them white votes. Hey, maybe it's costing us white votes. How about that pesky environment. It's costing us business votes. Let's drop it. And nobody likes unions, let's forget those misguided organized labor ideas. And let's really downplay that whole "everybody is a person and deserves the full rights and respect due humans". Bye bye gays, and good luck. Poor people, you're really dragging us down - sayonara.

      I've heard heretofore pro-choice Democrats entertaining the same idea about the abortion plank, though, so your proposal isn't coming out of left field. But I'd just say the same thing to them. Who are you if you don't stand your ground? If you lose, you just lose. If you're suggesting we go Vichy, I can't get with that. If people want to be pro-choice and still vote with me, that's fine. But I'm not changing for convenience. Principles are principles, not chess pieces. It isn't kool-aid for me.

      •  It's politics, not religion. (none)
        Look:  it's easy to say, "stand by principle" (however misguided those priciples may be.)  But that doesn't get you a seat at the table; it more likely than not gets you a one-way ticket to the political graveyard.

        You want a seat at the table?  Then you play ball and find a way to work your agenda within the limits of the political reality: childcare; contraception; adoption incentives; exceptions for rape and incest, etc; healthcare for children.

        You want everything your way? Have fun sitting in chat rooms talking to people who agree with you; that's as far as you'll get, politically.

        Politics is ultimately a game of compromise and there are very few absolutes.  (And you can only defend the absolutes when you get to the tables.)  Keep the notion of absolute "right" and absolute "wrong" in the church, the temple, and the mosque.  If you want to game the system, you do what it takes to get you to the table first.    

        "He serves best the party who serves best the country". Rutherford B. Hayes

        by Thinking Republican on Tue Dec 14, 2004 at 07:55:22 PM PST

        [ Parent ]

        •  Two answers, Thinking Republican (none)
          The first answer has already been stated.  It's principle.  Any human being has the right to make choices about what happens to his or her own body.  That's where the state may not intervene.  There's more to be said here, but I'll let others do it.

          The second answer is that, if the Republicans succeed in overturning Roe v Wade or even in limiting it significantly, you will see a political hell break loose like you can't imagine.  If Republicans do that, they won't even be able to see the table with a telescope.  Bush and company have talked the talk on this issue, but they have never walked the walk because they know what will happen.  They have promised, but they have never delivered.  This time, with no more elections for them possible, they may try, but I suspect not.

          So, that's my response, Thinking Republican.  Thanks for visiting with reasonable questions and statements.

          •  Did you see "Saving Private Ryan"? (none)
            The Tom Hanks character, in a quiet moment with his sergeant, asks "Do you know how many men have been killed under my command?"  Then, he explains that he justified the deaths because those deaths accomplished missions that would result in more lives being saved.

            You say that you don't want to compromise your principles; that's fine, I respect that.  (I'm a rather principled person, too, in my business/family/professional life.)  And I would probably do business with you in a minute because you're a trustworthy person.

            But, when it comes to politics, your adherence to what you call "principle" amounts to political arrogance because it doesn't represent the view that will get you elected.  And in indulging that arrogance, you risk losing other things that are important to most mainstream Democrats:  you lose the right to choose the Supreme Court; you lose Social Security as we've known it; you lose environmental protections; you lose jobs by electing a president and a Congress that believes in unrestricted foreign competition; you lose governmental health insurance for catastrophic illnesses; you lose meaningful education reforms that condemns an entire generation of inner-city children to a lifetime of poverty or prison; you lose protections for laborers and labor unions; you lose the right to vote against a war of choice in Iraq...you lose a lot.

            You lose, period. The congress...the senate ...the presidency.

            Imagine if the commanders of those guys who waded ashore at Omaha Beach thought that, on principle, it was wrong to send 1,600 young men to their deaths on that miserable day in June, 1944.  Imagine that they would tolerate a Nazi regime in Europe because, on principle, it's wrong to kill young men.  How many more millions would have died in Hitler's death chambers?

            In politics, principles sometimes have to be compromised in the cause of a greater objective. When you recognize that, you're game to play in the national arena; when you don't, you stay home.

            The only alternative is to find a wedge issue of your own that will deliver you a slim majority -- something that will get a majority of voters to literally screw themselves in the voting booth -- and surrender up their oppostion to abortion -- because that other issue, "X", is more important to them.

            When you find that issue, send a telegram to the chair of the DNC; they'll want to know about it ASAP.

            Cheers.    

            "He serves best the party who serves best the country". Rutherford B. Hayes

            by Thinking Republican on Wed Dec 15, 2004 at 06:03:19 AM PST

            [ Parent ]

          •  As I say in a post below... (none)
            "Any human being has the right to make choices about what happens to his or her own body."

            Try selling your liver or your spleen on e-Bay - or even donating it to a close relative who's dying- and see how far you get.

            Cheers.

            "He serves best the party who serves best the country". Rutherford B. Hayes

            by Thinking Republican on Wed Dec 15, 2004 at 06:19:01 AM PST

            [ Parent ]

        •  I get you (none)
          And I understand the point. I was going to make a Vichy comment in my earlier post but didn't. But that's kind of how it feels to me - capitulate ostensibly to preserve some remnant in hopes of a brighter day. All anyone remembers is the capitulation. Some positions have to remain fixed. Compromise gets you a seat at the table, but over time can be corrosive. You find yourself being dragged down the ideological hill (cough cough, Clinton, cough cough). I'm already forced into enough other compromises by virtue of being out of power. At some point, and on some issues, you dig in because it would be disgrace and treachery to give up. Where be your flip flops now? If you can't find the votes, you still know you did the right thing. I know you think that's foolish, but we just have different opinions on what the point of politics is. For me it's not just to win, it's to represent positions that enough people want and to put them in play. When I watched the Dem convention, I almost threw up at all the talk about pumping up the military and "strength" and "killing the terrorists". Aaagh. None of that was us, and it felt totally alien and wrong. We tried to look like the other side and nobody bought it. All of this "shopping for values" crap that's happening on our side right now is disgusting. It makes it look like we just want to be in office and don't care what we stand for. We've got enough centrists and deal-makers already. Some of us have to remember who we are.
        •  Also. (none)
          Just read a good article by the guy who wrote "War is a Force That Gives Us Meaning". He articulates well the idea of taking a stand

          I think the cumulative effect of taking a moral stance, over time, is slow and hard and frustrating. If you go back and read Martin Luther King's autobiography, you see what kind of despair he faced in the early years of the Civil Rights movement.

          Sustain yourself through community and try not to become too focused on what you can accomplish, because it may very well be that, by the time we're gone, the world will be a worse place. But we have to validate our own existence, our own morality, our own life. And that comes by taking a stance, by standing up and remaining human. And there are times when remaining human is the only resistance possible.

          http://www.alternet.org/waroniraq/20725/

    •  No... (none)
      Abortion "on demand" has never been part of Roe. Blackmun tried to balance state interest in the protection of life with individual rights to privacy. Specifically he divided up pregancy into 3 trimesters. In the first trimester abortion could basically be "on demand", in the second trimester the government has an increasing interest in preventing abortion as the fetus begins to be viable. In the third trimester, after the fetus was fully viable the government is able to assert a very high level of interest in the survival of the fetus. Quite frankly I don't see anything wrong with this view as it protects both the right of the mother early in pregnancy, when the fetus is basically a part of the mother's body and cannot survive outside of the mother's body. As the pregnancy proceeds to term the state has a greater interest in preserving the fetus. At the final stages the state is allowed to invoke coercive measures to ensure that the baby is born. Seems like a good compromise to me. --John
      •  That's why I'm pro-life... (none)
        ...who's to say that a fetus isn'a baby on Wednesday, but then, magically, becomes a baby on Thursday?

        Life - any life - is too precious to take the risk that you're wrong.

        I also marvel at the notion that people have the "right" to "control their own bodies".  Try selling your liver on e-Bay and see how fast the Feds come knocking at your door. Or see how long you'll stay "free" if you acquire a highly communicable disease and ride on a crowded subway.  Or see how long the courts will allow you to refuse treatment if you have a curable degenerative illness, like, say, diabetes.  I don't know where this "right" comes from, except as an outgrowth of the women's movement.

        "He serves best the party who serves best the country". Rutherford B. Hayes

        by Thinking Republican on Wed Dec 15, 2004 at 06:15:15 AM PST

        [ Parent ]

  •  Good Grief (none)
    Yeah, because the post-New Deal interpretation of the Commerce Clause is such a disaster.  Just look at what a sorry state our economy has been in for the last 7 decades with all that federal overreach!  Let's go back to our pre-1937 Lochner era where judges check Congressional power, and we can really let those free markets grow!
  •  Good post (none)
    Some of the Kossacks who are actually Constitutional lawyers (rather than joe paperpusher who heard of this constitution thingy) should actually do a diary about the extents of the effects of the extension of the commerce clause however.

    It's not a black and white issue. Neither is it really conservatve or liberal. The commerce clause is used routinely now by the courts to allow the Fed to do literaly anything it wants to. That is not an understatement. So yes some very good and needed things have come out of it. But some very bad things have come out of it as well.

    The Democratic party needs to adopt its own moral and values principles (clawed) My other Drunken ravings

    by cdreid on Tue Dec 14, 2004 at 09:51:20 PM PST

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