2nd Term Part X - A link to a fore gone conclusion

[FlagDUDE08]

Re: 2nd Term Part X - A link to a fore gone conclusion

The federal/state boundary line is THE ongoing fight in Con Law. It drifts back and forth over time -- the Feds advanced for a time in the 20th century; the states have been recapturing territory since the 80s. This reflects the politics of the justices, with conservatives overall favoring states' rights and liberals favoring federal powers. If the Dems continue to win the White House the states' advance will eventually be checked and even reversed.

Marshall's statement of "means which are appropriate, which are plainly adapted to that end" is by definition open to interpretation, and the ultimate interpreters are the people, via the twice-removed mechanism of electing presidents who appoint justices.

Recapturing since the 80's my butt. That's when the alcohol stuff went into effect (at least in this state, which was one of the last to be subjected to that unconstitutional harassment).

And I hope you're not trying to use the NMSL as justification, because that was just a straight repeal.

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

Recapturing since the 80's my butt.

You don't think the states have been re-encroaching on the feds' 20th century gains? There are serious people who now openly talk about a return to Lockner. In the 60s and 70s those people would have been institutionalized for their own good.

[Rover]

Re: 2nd Term Part X - A link to a fore gone conclusion

You don't think the states have been re-encroaching on the feds' 20th century gains? There are serious people who now openly talk about a return to Lockner. In the 60s and 70s those people would have been institutionalized for their own good.

I personally don't think so. Gay marriage will be the latest, and there's been little going back. In regards to the EPA lawsuit, even the Roberts court has generally upheld the rights of the EPA to draft and impose new regulations. One would think the car industry for example would have sued years ago over fuel efficiency standards otherwise.

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

I personally don't think so. Gay marriage will be the latest, and there's been little going back.

Pro-choice lawyers would argue with you. The last 30 years have been whittling away of reproductive rights in the face of ever growing herpa-derp state power.

Maybe it is better to say that in different avenues the traffic has been moving in different directions than to characterize it as a tide which pulls all coves up or down. Other than choice I think you're right that on social issues the good guys are on a long winning streak, as one would expect when the country as a whole has been growing up. On pro-choice this hangs on the genuine issue of whether a life is involved, while there is nothing but crude rationalization of bigotry in the rearguard sniping against, say, segregation, miscegenation, equal rights for women, or gay marriage.

But in economics I'd say it's pretty undeniable that the highwater mark for federal power has long since passed. Nixon imposed price and wage controls, ferchrissakes.

[Rover]

Re: 2nd Term Part X - A link to a fore gone conclusion

Sure, I'd agree on economics with the BIG caveat that the gubmint basically took over the financial, mortgage, and auto industries for a time and dictated how those business were to be run. Lets call that the big F'in crisis exemption.

Abortion rights are going to come to a head with a very interesting case before the court, which is can states ban medicine-induced abortions? If they can't (and the thinking is they can't so long as all applicable waiting periods, age requirements, etc are satisfied) all this nonsense about closing clinics becomes moot.

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

Abortion rights are going to come to a head with a very interesting case before the court, which is can states ban medicine-induced abortions? If they can't (and the thinking is they can't so long as all applicable waiting periods, age requirements, etc are satisfied) all this nonsense about closing clinics becomes moot.

I think the abortion battle will be with us for as long as there is no 100% perfect male contraceptive. Prior to that, the science doesn't matter -- this is a purely religious battle, and religions don't give up regardless of fact (c.f., evolution). Once there is a 100% male contraceptive, abortion disappears except as a vanishingly rare medical procedure after a rape.

[Bob Gray]

Re: 2nd Term Part X - A link to a fore gone conclusion

Recapturing since the 80's my butt. That's when the alcohol stuff went into effect (at least in this state, which was one of the last to be subjected to that unconstitutional harassment).

And I hope you're not trying to use the NMSL as justification, because that was just a straight repeal.

Agreed. The states have been on a long losing run, with an occasional outlier. The feds have more and more power and I don't see that ending anytime soon.

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

Agreed. The states have been on a long losing run, with an occasional outlier. The feds have more and more power and I don't see that ending anytime soon.

But the growth of fed power isn't the same as the encroachment of fed over what was formerly state power. A lot of fed growth just reflects the country's growing interconnectedness. Interstate commerce wasn't all that common in the 18th century. Now it's nearly unavoidable. Likewise, lots of government functions benefit from economy of scale -- things like social security would be ridiculously complex and inefficient if there were 50 individual systems. Little by little we're learning the same is true with health care.

You're fighting technology and demographics, not mission creep. If, for example, the US went through a period of population contraction and/or globalization began to reverse and economies became more local, we'd expect to see federal power diminish. That's just fluctuation of the amount of activity within scope, rather than an actual change of scope.

[unofan]

The thing is, the Tenth Amendment adds nothing to the constitution regarding federal powers, so you can't "circumvent" it. The entire underlying principle of the constitution is that the federal government has only those powers positively stated in the constitution either explicitly or implicit in the necessary and proper clause:



What the Tenth does do is reserve powers actively to the states unless they conflict with federal powers. Again, though, I'd have thought that was implicit in the federal system; hence, the Tenth Amendment doesn't appear to have any real purpose except to reiterate facts which are otherwise apparent.

If I were a Fed Hater, I'd be hanging my hate, er, hat on the Ninth, not the Tenth.

For the record, the drinking age is enforced through the spending clause. Congress tells the states to set their drinking age at 21 or they'll lose all sorts of federal transportation funds. The postal roads clause has nothing to do with it.

[FlagDUDE08]

Re: 2nd Term Part X - A link to a fore gone conclusion

You don't think the states have been re-encroaching on the feds' 20th century gains? There are serious people who now openly talk about a return to Lockner. In the 60s and 70s those people would have been institutionalized for their own good.

I'd love to see your examples on state gains, because there sure as heck haven't been too many that I've seen. And don't count any that are state in name only, and were done under threat of cutting federal funding (which is what happens with alcohol laws).

[FlagDUDE08]

Re: 2nd Term Part X - A link to a fore gone conclusion

For the record, the drinking age is enforced through the spending clause. Congress tells the states to set their drinking age at 21 or they'll lose all sorts of federal transportation funds. The postal roads clause has nothing to do with it.

The specific funding that is cut is highway funding. That sounds like postal roads to me.

[unofan]

The specific funding that is cut is highway funding. That sounds like postal roads to me.

The only thing the postal route clause establishes is the post office. Which makes it all the funnier when libertarians like you want to abolish it, considering its explicitly mentioned in the constitution.

the drinking age is attached to a spending bill and is therefore enforceable under the spending clause. It's literally a textbook example of that, as in that's one of the examples straight from the textbook in constitutional law classes.

https://en.wikipedia.org/wiki/South_Dakota_v._Dole

[joecct]

Re: 2nd Term Part X - A link to a fore gone conclusion

Pat - once again on free trade. He excoriates the GOP Congre$$.
http://m.townhall.com/columnists/Pat...medium=twitter

[Rover]

Re: 2nd Term Part X - A link to a fore gone conclusion

I want one of the Leaders to bestow upon me honorary knuckledragger status (Flaggy, joe, Bob, etc etc) because I agree with the bahstids. I just don't see the federal gubmint retracting any so I too am curious why Kep feels that way. However, I'm sure I'll lose my honorary status when I point out the federal powers were expanded more by so-called conservative hero George W Bush than any other President since LBJ!

[FlagDUDE08]

Re: 2nd Term Part X - A link to a fore gone conclusion

I want one of the Leaders to bestow upon me honorary knuckledragger status (Flaggy, joe, Bob, etc etc) because I agree with the bahstids. I just don't see the federal gubmint retracting any so I too am curious why Kep feels that way. However, I'm sure I'll lose my honorary status when I point out the federal powers were expanded more by so-called conservative hero George W Bush than any other President since LBJ!

You might not get knuckledragger status, but I will welcome you into the light of states' rights. Republicans evolved (by a few "generations") from the Federalists, so of course they champion big government.