The Power of the SCOTUS II: "Release the Kagan!"

[Kepler]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Both sides are guilty of trying to dominate our lives and wave the constitution as an excuse. You have the social issues, the fiscal issues and the legal stuff. I feel confident that the founding fathers would be appalled at what people say they were trying to do or what people would like to do in using that document.

The Founding Fathers did not have an antipathy towards constitutions and the rule of law. They only wanted to see that their traditional rights as Englishmen were not abridged.

We should stop trying to reinvent the Founders as some sort of Libertarian think tank. They were products of a different age with different perspectives. The only view you would get uniformally from them if you ran these "original intent" arguments past them would be, "Good God, you guys are still treating our words like Scripture 230 years later? That's very flattering, but we were hopeful you might be able to design your own appropriate system every generation or so."

They would be aghast that people turned the minutes of one particular convention into a fetish.

Where the "originalists" go wrong is by fixating on specific language they missed the whole underlying point that Adams and Jefferson were on about. The mechanism of change has to be through appeal to the popular sovereign (in their time... the fifteen guys you were on Law Review with), but change is healthy and expected. The focus should be on getting the votes and getting the amendments. Just pass a flipping amendment that leaves no doubt that our age accepts that having an EPA or an FDA or a Department of Education are explicitly within the powers of the federal government.

This is another reason to let the Confederacy go next time. We kept the marriage together "for the sake of the children," and nice effort, but it really has been a fundamental mismatch of values. Leave the gun. Take the canollis.

[leswp1]

Re: The Power of the SCOTUS II: "Release the Kagan!"

All I can think of is (Haha- this is ironic)The book of Matthew where Jesus tells people they are getting obsessed with the letter of the law and missing the point. You said with more clarity what I was trying to articulate. One of the things I think of is most of them would be surprised that they have changed from being Theists to Christian Fundamentalists.

[FreshFish]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Where the "originalists" go wrong is by fixating on specific language they missed the whole underlying point that Adams and Jefferson were on about. The mechanism of change has to be through appeal to the popular sovereign...[because] change is healthy and [to be] expected. The focus should be on getting the votes and getting the amendments. Just pass a flipping amendment that leaves no doubt ...

It's interesting how often we agree.

I've been trying to articulate the same point for awhile. We have an amendment process: if your plan is so great for everyone, then everyone will sign on, and we can pass an amendment to spell out how far we can go to implement it. Imagine how much less trouble FDR would have had with the SCOTUS if he merely had tried to implement a few new amendments; he had the majorities to pass them and send them on to the states, and the times were such that well-crafted amendments likely would have attracted the 3/4 majority needed for implementation. His problems were impatience and hubris (hmm...sound familiar to anyone else we know?)

The EPA seems to be exceeding its statutory role in certain areas, for example (based on a recent theory they advanced about CO₂ emissions, they easily could claim the authority to regulate breathing!). It would be nicer to have a clear succinct understandable description of what it can or cannot do.



These days, rarely is it a question of "whether" we do something, far more often it is a question of degree: "how much of it" is a "good thing" and when does it become "excessive"?



I was in our break room the other day and there is a big 2' x 3' poster that is mandated to be there (and in every place of employment throughout the country). On it are a detailed list of regulations in 7 boxes: two from DOL, one from EEOC, one from OSHA, a few more I can't recall right now but if I remember I'll update this list on Monday. There was a similar poster of equal size from the state government as well.

We recently wanted to expand a parking lot next to our existing one on land we already owned. Turns out we'd need to file 37 forms with 18 agencies, one of them certifying that there was no lead paint present. No one in this day and age wants to regress, on the other hand no one wants to be strangled either. We need to find some balance.





While I am an ardent liberal, I find that these days, I generally have more sympathy with conservatives than with progressives because so many of the latter have the fiery passion of zealots, they are so sure they are right that they brook no dissent. One of the fundamental tenets of philosophical conservatism (not transient political "conservatism") is that people are fallible. It is a bit amusing yet true, yesterday's radical is today's conservative. At the time of the passage of the 14th amendment, conservatives opposed it, yet now conservatives call upon it as a fundamental right. Once enough time passes, conservatives generally do get on board if an idea makes sense to enough people.

[Kepler]

Re: The Power of the SCOTUS II: "Release the Kagan!"

All I can think of is (Haha- this is ironic)One of the things I think of is most of them would be surprised that they have changed from being Theists to Christian Fundamentalists.

Where by "surprised" read "horrified." From the experience of Europe the Founders hated two things: kings and thumpers. America was created to ditch both.

[Kepler]

Re: The Power of the SCOTUS II: "Release the Kagan!"

It's interesting how often we agree.

I've been trying to articulate the same point for awhile. We have an amendment process: if your plan is so great for everyone, then everyone will sign on, and we can pass an amendment to spell out how far we can go to implement it. Imagine how much less trouble FDR would have had with the SCOTUS if he merely had tried to implement a few new amendments; he had the majorities to pass them and send them on to the states, and the times were such that well-crafted amendments likely would have attracted the 3/4 majority needed for implementation.

I'd be fine with this. And I am all for shedding the dead weight we've dragged around since 1865 to make it happen.

[bronconick]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Where by "surprised" read "horrified." From the experience of Europe the Founders hated two things: kings and thumpers. America was created to ditch both.

Well, not quite. The Kings hated thumpers too and shipped them over here. Hello, 400 years of sexual repression.

[Kepler]

Re: The Power of the SCOTUS II: "Release the Kagan!"

Well, not quite. The Kings hated thumpers too and shipped them over here. Hello, 400 years of sexual repression.

One of the great myths is that the Puritans were sexually repressed. Most weren't -- in fact a majority of the first generation of white children born in America were the result of sex outside of marriage. We've always been a continent of sluts, and thank god for that. The only thing the Pures did differently was they were hypocrites about it.

That's what happens when you stick 15 year old girls and 17 year old boys together, and it has in every age in every place on Earth. Thumpers are just as likely to thump as everyone else -- in fact judging from the demographics evangelical Christians probably have the loosest sexual morals in the country (which explains the virulent backlash and attempt to blame everyone else). Think about it -- everybody's parents had sex, and nobody has ever met anybody as asexual as their parents.

[MinnFan]

Re: The Power of the SCOTUS II: "Release the Kagan!"

The focus should be on getting the votes and getting the amendments. Just pass a flipping amendment that leaves no doubt that our age accepts that having an EPA or an FDA or a Department of Education are explicitly within the powers of the federal government.

On this we completely agree. The Constitution was supposed to be the chains weighing down gov't so that it couldn't trample all over the individual. Unfortunately, those chains have been broken and its going to take a massive upheaval to put them back on.

To paraphrase Jefferson: It is the natural incination of things for gov't to grow and libery to yeild

[Plante26]

Re: The Power of the SCOTUS II: "Release the Kagan!"

We should stop trying to reinvent the Founders as some sort of Libertarian think tank. They were products of a different age with different perspectives. The only view you would get uniformally from them if you ran these "original intent" arguments past them would be, "Good God, you guys are still treating our words like Scripture 230 years later? That's very flattering, but we were hopeful you might be able to design your own appropriate system every generation or so."

I don't doubt that to a certain extent. I also don't doubt that they'd be appalled that the federal government has grown to the size it has, wields as much power as it does and has amassed as much debt as it has.

Though, when the Founders refer to certain inalienable rights being endowed upon us by a Creator......I doubt they'd be alright with government overstepping its bounds on the issues of life, liberty and property/pursuit of happiness.

[leswp1]

Re: The Power of the SCOTUS II: "Release the Kagan!"

I don't doubt that to a certain extent. I also don't doubt that they'd be appalled that the federal government has grown to the size it has, wields as much power as it does and has amassed as much debt as it has.Though, when the Founders refer to certain inalienable rights being endowed upon us by a Creator......I doubt they'd be alright with government overstepping its bounds on the issues of life, liberty and property/pursuit of happiness.

THis might be a weird thought but at that time there were fairly strict social mores that people ascribed to and communities were very dependent on each other. As time has gone on and people feel or act less attached/responsible for others in their communities it seems there is an attempt to legislate people into particiating in a way that used to be assumed/expected.

[joecct]

Re: The Power of the SCOTUS II: "Release the Kagan!"

...Think about it -- everybody's parents had sex, and nobody has ever met anybody as asexual as their parents.

Well in this age of same sex marriage and test tube babies, there is some doubt about that adage.

[5mn_Major]

Re: The Power of the SCOTUS II: "Release the Kagan!"

While I am an ardent liberal, I find that these days, I generally have more sympathy with conservatives than with progressives because so many of the latter have the fiery passion of zealots, they are so sure they are right that they brook no dissent. One of the fundamental tenets of philosophical conservatism (not transient political "conservatism") is that people are fallible. It is a bit amusing yet true, yesterday's radical is today's conservative. At the time of the passage of the 14th amendment, conservatives opposed it, yet now conservatives call upon it as a fundamental right. Once enough time passes, conservatives generally do get on board if an idea makes sense to enough people.

Both sides have the passion of zealots and neither side today considers itself fallible. Its the type A personalities that are attracted to the stage.

I would say 'conservatives ultimately do get on board'. The modern society we take for granted is full of changes conservatives fought against in the 19th century. It does make you wonder about today...

[Priceless]

Re: The Power of the SCOTUS II: "Release the Kagan!"

While I am an ardent liberal

I'm sorry...what?

[dxmnkd316]

Re: The Power of the SCOTUS II: "Release the Kagan!"

I'm sorry...what?

haha

[WeWantMore]

Re: The Power of the SCOTUS II: "Release the Kagan!"

I'm sorry...what?

Because the contemporary American use of that word is the only way it can be used.