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gutzmank
ParticipantWe aim to please.
ParticipantI concur with Dr. McClanahan entirely.
ParticipantYou’re welcome.
ParticipantNo, it’s not a utilitarian approach. A utilitarian approach would be the one you favor: apply libertarian principles to the facts at hand, law be damned. As Justice James Iredell noted in Calder v. Bull (1798), however, no two men agree what the natural law is, and so saying that federal judges are free to apply their own ideas of the Good, theTrue, and the Beautiful means that we’re in a lawless society: one in which the judges can impose whatever policies they want to impose upon us, and we can’t do anything. In short, your solution is akin to that in today’s Iran, where the mullahs make the final decision, or Egypt, where the army does. Unfortunately, a high proportion of federal judges today behave as you seem to prefer, with the notable qualification that they are not libertarians.
When someone becomes a federal judge, he takes an oath to uphold the Constitution. In case he finds this inconsistent with his ideals to such a degree that he cannot in good conscience apply the Constitution, he should resign his office, not enforce principles that violate his oath.
ParticipantIf you don’t mind my interjecting, one fine source on the events leading to the firing on Ft. Sumter is Clyde Wilson’s CAROLINA CAVALIER.
ParticipantNo, we don’t. Various attempts have been made to explain, but without any success. Again, consult Maier’s AMERICAN SCRIPTURE, far the best book on the topic.
ParticipantThe Federal Government is supposed to be a limited government, with only the powers delegated via the Constitution. Since Article III does not empower federal courts to hear suits against state governments, they have no such jurisdiction. In case this idea doesn’t appeal to you, there’s the 10th Amendment. In the wake of this case, there’s also the 11th Amendment.
Of course a man should be able to seek justice. In the American system, that means by going into a state court, in case the state allows it.
Some people believe in “courts of justice,” but in the American system, we are supposed to have “courts of law.” The difference is that in the former model, judges’ discretion is relatively unfettered, while in the latter, they’re on a tight leash.
ParticipantA federalism amendment should correct the incursions on state authority of both the federal legislature and the federal judiciary. With that in mind, I think that it ought ideally to have the following components:
1) Make clear that the Interstate Commerce Clause of Article I, Section 8 empowers Congress only to regulate COMMERCE that is INTERSTATE (as the Supreme Court recognized before 1937);
2) Empower individual taxpayers and state governments to bring suit for injunctive relief in case Congress exceeds the bounds of its powers, as clarified by this amendment (lawyers call this giving individuals and states standing to sue for injunctive relief) and declare that these questions are justiciable (not “political questions” that the federal courts should dodge);
3) Make clear that the Due Process Clause of the Fourteenth Amendment is about nothing other than Due Process in judicial proceedings — that is, that it doesn’t give federal courts power to invent rights unknown to the ratifiers and does not make the federal Bill of Rights enforceable by federal judges against the states;
4) Repeal the 17th Amendment *and* give the state legislatures the power of recall over US senators (and thus give state legislatures a check on Congress’s tendency to usurp state legislative authority);
5) Require a balanced federal budget except in time of war declared by Congress;
6) Empower state legislatures to overturn federal judges’ constitutional decisions. This could be done by saying that if 2/3 of legislatures vote to do so, it is done, or in some other way.
Of course, which of these would be advocated is a political decision. The ones that are absolutely essential are #1 (which would go far to rein in Congress’s claim of power to legislate in regard to any question that comes to mind), #2 (which would make #1 judicially enforceable, and without which #1 would have no force), and #3 (which would eliminate the federal courts’
chief justification for the wide-ranging legislative authority they now exercise).ParticipantI agree entirely regarding Sir Steven Runciman. Volumes 1 & 2 of his history of the Crusades are outstanding, as is his BYZANTINE CIVILIZATION. His book THE FALL OF CONSTANTINOPLE, 1453 is depressing, but what else could it be?
For many years he was head of The Friends of Mt. Athos, of which HRH the Prince of Wales was also a member. Their annual newsletter is quite interesting.
ParticipantI think repeal of the 17th Amendment is impossible, but other changes to restore states’ supervisory role can be imagined, and indeed I’ve proposed some.
ParticipantThe reason “law school types” make that argument is that law school curricula feature only lots of case law and, occasionally, a few excerpts from THE FEDERALIST. Since that’s all “law school types” know, they have a vested interest in saying that’s all that matters.
On the other hand, their assertion is nonsense: the Philadelphia Convention merely wrote a proposal. As Article VII says, it had no effect until ratified by 9 states, and then only in the states that had ratified. As Madison said in THE FEDERALIST and Jefferson said elsewhere, it was to the ratification conventions that one must look for the Constitution’s meaning. Why? Because it was the explanation(s) the Federalists gave during the ratifcation conventions that the people ratified.
Popular government — government by the consent of the governed — is the government to which the people consented, not some gnostic secret cult’s private reading. The latter sounds very Straussian.
Ask your “law school type” friends this question: what if the Philadelphia Convention had secretly agreed that members of the Philadelphia Convention would be our king and lords, or that they had envisioned a military dictatorship, along with abolition of press freedom and trial by jury, would that then be what the Constitution required? Please.
ParticipantIt is mentioned.
ParticipantNo, their argument isn’t that “we are likely to poison ourselves,” it’s that New Orleanians were being poisoned. This assertion seems incontrovertable.
As to “the professor,” I don’t agree. As I explained before (and do at more length in THE POLITICALLY INCORRECT GUIDE TO THE CONSTITUTION), earning a J.D. doesn’t require obtaining any knowledge of constitutional history. Unfortunately, being hired as a law professor after obtaining a J.D. seems to confer the impression that one is expert in constitutional history. This is a very unfortunate combination.
ParticipantWest Coast Hotel v. Parrish has two footnotes. That’s why Footnote 4 isn’t mentioned.
March 23, 2013 at 7:59 pm in reply to: THE CHURCH AND THE MARKET(Woods 171) – Healthcare a victim of its own success? #19761ParticipantOf course, the other contributing factor is the false assumption that when government provides benefits, those benefits are free. Had I the proverbial magic wand, I would give everyone in America the economic understanding of someone who had completed introductory Microeconomics with a grade of “A” and had read 10 economics books of my choice. This, I believe, would resolve several of America’s most pressing problems.
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