A Trillion Dollar Recovery

Poverty is on the rise, record numbers of people are relying on food stamps and we've seen no relief for the foreclosure crisis. There are increasing rates of child abuse and domestic violence linked to this recession. State governments don't have financial resources to cope at the exact moment when those resources are most needed. Nineteen states and the District of Columbia have lowered Medicaid payments or eliminated people from eligibility. The senior economist of the International Monetary Fund recently warned of another Great Depression

We don't need a stimulus, we need a recovery. And that means investing $1 trillion over the next two years.

The Congressional Progressive Caucus (CPC) has proposed a plan to do just that--a detailed $1 trillion recovery plan to kick start the economy, invest in sustainable, long term growth and target individuals and communities that are most desperate for resources.

Obama political adviser David Axelrod said this weekend that the new Administration is looking at a stimulus bill in the range of $675 to $775 billion over two years. But is that enough at this moment of metastasizing economic pain and deepening recession? Not according to CPC Co-Chair, Representative Lynn Woolsey of California, who said, "...anything much less than $1 trillion would be like trying to put out a forest fire with a squirt gun."

In addition to much needed investments which have already been laid out--like the extension of unemployment insurance while joblessness soars, increasing food stamps, and assisting cash-strapped states with Medicaid--the CPC plan goes a step further. It takes a holistic approach to economic recovery and the needs of ordinary Americans by addressing infrastructure, human capital, keeping people in their homes, job creation, fiscal relief for state, local and tribal governments, education and job training and tax relief for lower-income families.

There are smart commitments in the CPC plan that deserve real attention, such as:

• A percentage of the infrastructure work would be performed by veterans, low-income and homeless individuals, out-of-school youth, and others facing multiple barriers to employment.
• Green technologies to weatherize the nation's homes and small businesses.
• Grants to neediest schools for modernization, renovation, energy efficiency, and investing in educational technology.
• Construction of libraries in rural communities in order to expand broadband access
• Capital improvements and short-term operating funds for federally-qualified health centers.
• Boost funding for National Health Service Corps to produce more doctors, dentists and nurses to provide health care in underserved area.
• Expand sustainable food systems at local community level.
• A moratorium on home foreclosures.
• At least $100 billion allocated to "green jobs creation", including at community level and in Indian Country.
• Creation of a new energy block grant to transition to green energy sources
• Re-establish Youth Conservation Corps to eliminate backlog of work projects in national, state, and local parks.
• Federal Arts and Writers Project to create jobs for American artists, writers, editors, researchers, photographers, and others.
• Triple funding for Community Development Block Grant Program
• Make the child tax credit fully refundable, lifting 2.7 million people--including 1.7 million children--above the poverty line.
• Expand the earned income tax creditfor families with three or more children.

"The Progressive Caucus is determined to bring justice and prosperity to the American economy, and this proposal does both," CPC Co-Chair, Representative Raul Grijalva of Arizona, said in a released statement.

"The American people's urgent needs in health care, employment, education and infrastructure have been neglected for so very long that the basic structure of our economic system has been undermined. Now that the American people have the attention of Wall Street and Washington, we intend to lift their voice and demand the profound change the people voted for."

There is a groundswell of support for massive action along these lines. More than twenty progressive groups and unions are spearheading the Jobs and Economic Recovery Now campaign, building grassroots support for a bold recovery program of $850 billion or more. At events across the nation, supporters urged quick passage of the legislation so that it is waiting on President Obama's desk the day he takes office.

The campaign is also targeting moderate Republicans in the Senate in order to avoid a filibuster. It was just three months ago, after all, that Republicans successfully filibustered a stimulus that targeted unemployment insurance, food stamps and "shovel-ready" infrastructure projects--and that was only $56 billion.

At this moment, a massive recovery along the lines of what the country needs is far from a done deal. The Congressional Progressive Caucus has done a great service with its plan, showing us what a comprehensive approach to economic recovery looks like--addressing the needs of ordinary Americans who have been left behind by the Wall Street Bailout Bonanza and eight years of greed and deregulation. Contact your elected officials--make sure they read the plan and support a $1 trillion recovery. We can't afford anything less.

Comments (150)

1. This recommendation is nothing more than transfer payments... Another form of a government check. Nothing of this spending will help grow the economy or improve the atmosphere for economic recovery. All this is nothing more than spending other peoples money, money not yet generated and money not created as wealth. None of the spending is creating wealth and creating wealth is what is needed to generate more capital. Cutting expenses when money is tight is the correct solution but we will never see that occur. The same people who set up the conditions and the events of the economic crash are now being put in charge of "fixing" it. I can't wait for the healthcare plans.

   Cutting taxes, letting the bad business fail and regrouping in the natural market is the solution we will never see and more government spending is what we will get, along with largest deficits known to man... make Iraq look cheap.

   And it will not help, work,or stop the problem... We will become what ALGORE always wanted...we will bcome satnant like Japan fir 10 years as no wealth will be created to grow ourselves out of our troubles...just govenment spending and printing.

   Posted by YourJomamma at 12/31/2008 @ 01:10am

2. In a fascinating bit of contemporary history the planet is poised to celebrate the ignominious denouement of the Bush-Cheney junta, and the installation of a new celebrity president of the United States even as the symbolic and actual global oceans rise, and threaten to swamp the better part of civilization as we know it.

   So much to be addressed, so little time.

   I laud the suggestions here by Ms. vanden Heuvel to push for a maximum economic stimulus plan at home (think of it as akin to applying the oxygen mask in an aircraft emergency), but I would suggest as well that the smoking tinder box that is the Middle East --with the Israel-Palestine stranglehold at its core-- offers the American people a ripe opportunity to begin to apply long overdue pressure on our entrenched political establishment to bring substantive change to what is almost undoubtedly THE fundamental issue of modern geopolitics.

   Namely, the times demand that we conduct a complete overhaul of our energy policy with an eye toward a maximum emphasis on energy conservation, clean renewable energy sources and cutting edge technologies domestically, and last but certainly not least, a clear-eyed re-evaluation of our "special relationship" with Israel.

   With Israel yet again acting like a rabid predator --dragging the U.S. along in its wake of impetuous, ferocious and monumentally foolish destruction-- perhaps just enough of a critical mass of outraged U.S. citizenry can begin the process to eventually break the chains that enslave us.

   The events of the last several days are both a crisis and a tremendous opportunity for the humane and alert among us to say loudly and clearly, "ENOUGH IS ENOUGH!"

   If "change we can believe in" is to have any meaning at all, I strongly suggest that we use the

   Posted by b_kool_66 at 12/31/2008 @ 01:13am

3. tragic events of the moment as a lever to move the world.

   There are plenty of voices speaking out with fierce energy, just not enough of them here at home in my opinion. I urge readers here to get motivated, get educated, and make the inauguration of Barack Obama an occasion to put the cross hairs on just what exactly he meant by "change we can believe in."

   Tom Feeley's outstanding InformationClearinghouse.info website is but one superb place to begin a further exploration of the many energetic and brilliant voices that are agitating with vigor in the wake of the brutal and senseless violence now being perpetrated in Gaza.

   There hasn't ever been a more critical time to act than now in my opinion.

   Barack Obama may have had the audacity to run on the legacy of Lincoln, but it will be up to us to actually play the role of Lincoln and put the heat on General George B. (Barack) McClellan.

   This fight will not be an easy one --the manacles on Obama are craftily and expertly forged-- but anyone with their eyes wide open should see that the useful choices we now face are narrowing almost daily.

   The time to act is NOW.

   Posted by b_kool_66 at 12/31/2008 @ 01:13am

4. By the way, here's another exceedingly worthy cause for immediate consideration from the organization, Democrats.com --at issue, to vocalize the need for a special prosecutor on torture and wire taps at Obama's "Change.gov" website:

   We need your help to make our Special Prosecutor question #1!

   1. Sign in at http://change.gov/openforquestions 2. Search for " Fitzgerald " 3. This will display several similar questions, so look carefully for "Bob Fertik" 4. Look right for the checkbox, mouseover it so it goes from white to dark, then click to cast your vote

   As Ari Melber writes in The Nation,

   With so few journalists directly asking the President-Elect about [torture and war crimes prosecution], it is up to the rest of us to put accountability and the rule of law on the agenda. Change.gov is a fine place to start.

   Posted by b_kool_66 at 12/31/2008 @ 02:00am

5. One more --outstanding one-- for the road (from Counterpunch.org). The final paragraph sums it up nicely I think.

   The War Against Palestine

   By GEORGE SALZMAN and MANUEL GARCIA, Jr.

   The war against the Palestinians arises from the merging of the Zionist view of Jewish exceptionalism with the view in the United States of American exceptionalism, which have focused their common root ambitions for domination and possession as a hostility to Islam, and this is the leading crusade in the "clash of civilizations," proclaimed by just-deceased Harvard historian Samuel P. Huntington, which is the war against the world's poor and dark-skinned people, the war of conquest carried out to enforce a rule of worldwide apartheid by a culturally Euro-American, racially white, highly industrialized capitalist elite.

   The Zionist view of Jewish exceptionalism is critically examined, and demolished, in the book Overcoming Zionism, by Joel Kovel. This mind-set boils down to 'any victimization of Jews we Zionists can remember, historically, justifies all our aggression, persecution and even genocide of Palestinians; we are, and will always be, the exceptional victims of world history and so are forever blameless; to disagree is to be one with our historical persecutors.' The Jewish religion is quite incidental to the actual intent of the exceptionalism; Zionism is a criminal conspiracy drawing participants through a Jewishness filter, in the same way the Mafia exploits Sicilian heritage to filter its recruitment and promotion.

   The operation of Zionist exceptionalism in Palestine mirrors that of the white Christian exceptionalism Jews had suffered under for centuries, and which was described in the book The Destruction Of The European Jews, by Raul Hilberg.

   Posted by b_kool_66 at 12/31/2008 @ 02:28am

6. I (MG, Jr.) was made aware of the insights of the Kovel and Hildberg books by Professor Emeritus (of physics) George Salzman. The three stages of development of racial-religious labeled exceptionalism are: conversion, expulsion and extermination. Hilberg summarizes "the three successive goals of anti-Jewish administrators. The missionaries of Christianity had said in effect: You have no right to live among us as Jews. The secular rulers who followed had proclaimed: You have no right to live among us. The Nazis at last decreed: You have no right to live."

   The arc for European Jews between the years 400 and 1940 was first to be pressured to convert to Christianity or face employment discrimination, then from the 13th to the 16th century Jews resisting conversion were expelled from many countries, and finally the Nazis devised industrialized extermination. The arc for Palestinians seems to be compressed to a time scale measured in decades rather than centuries. Conversion was never an option, and many forms of exclusion were enforced from the first days of the State of Israel (which, couldn't we see as just the earliest Zionist-occupied section of Palestine?). Wars of territorial conquest since 1967, and the continuing invasion of "unoccupied" territory by "settlers" and their protective cavalry, the IDF -- or land rushes into Indian Reservations, as we knew them in the U.S. -- bend the arc from exclusion to extermination. In the logic of Zionist exceptionalism, there is nowhere within the limits of their territorial vision where Palestinians have "a right to exist." What other kind of mentality could inflict modern aerial bombardment of essentially unarmed, corralled masses of people? Our world remains at Guernica, the Stukas and Heinkels are now F-16s and Lavi jets.

   Posted by b_kool_66 at 12/31/2008 @ 02:28am

7. If the world does not rise up in unison to halt this slaughter in Palestine, and the relentless and hypocritical land theft motivating it, who could then blame the descendants of the victims -- for there will be children who survive to remember -- if they are well satisfied with the collapse of our own society in the future, and in fact help in its destruction through some great catastrophe, which we may be too arrogant and self-assured to envision now just like the self-satisfied elites of the 1930s. Time and the pressure of increased impoundment always breach dams, and resolve unnatural imbalances by a leveling flood. Time and the unrelieved resentments of increasing world poverty will ultimately breach our separation walls of control and drown our luxuriant indifference under a leveling tsunami. This is not a biblical type of prediction, just a matter of logic. If we, in the nations with the power to discipline the Israeli Zionists -- most especially the United States, do not act soon and consistently thereafter for self-evident justice, we will pump up oppositional energies to our national progress. If we continue to act like conquerors apart from the rest of humanity, whom we view in purely utilitarian terms -- as slaves -- we must inevitably drown under a Red Sea of our own making.

   Mere appeals in internet publications can do little, but in our capitalist, hierarchical world, each person can act to a degree commensurate with their level of political and financial power. And, the best application of that agitation is to influence those above you to take action commensurate with their power. Yes, this is the opposite of doing what is good for your career by doing what is necessary to advance the careers of your bosses.

   Posted by b_kool_66 at 12/31/2008 @ 02:28am

8. I leave to you the delicacy of striking a balance between your particular career and your brotherly and sisterly duty to humanity; but I will irritate you as I can, to choose the more rebellious path, because ultimately career is a personal war against humanity and a defilement of self-respect, which is exchanged for lucre and an illusion of power. Rebel against exceptions to your sympathies. Rebel against indifference to suffering.

   There are many, many injustices and tragedies underway in our world, which cry out for immediate attention, and no one can really rank them as to deserving more or less help. Nevertheless, many currents of history have been distilled into what we see today as the war against the Palestinians, and it is keenly observed throughout the world. For this reason, we could say that the fate of the Palestinians is the measure of the world's conscience, and will mark our level of civilization in the pages of time.

   Posted by b_kool_66 at 12/31/2008 @ 02:29am

9. ... make Iraq look cheap.----Posted by YourJomamma at 12/31/2008 @ 01:10am

   MAASCH, few questions-

   1. You still support us going into Iraq, right?

   2. How much will THAT eventually cost us?

   3. Aside from a Iran-friendly Shiite government and 4100+ dead GIs, what did it get us?

   4. If we spend the same amount HERE, wouldn't we at the LEAST, get some paved roads and no dead people?

   BTW, it won't be Ms vanden Heuvel's full Christmas list. Maybe $600-700 Billion.

   Posted by Mask at 12/31/2008 @ 07:11am

10. If we need to spend more to create jobs and get the economy working, go for it. Didn't hear too many folks complaining on the right when Bush was and still is spending millions in Iraq on this bogus war!! All of a sudden it's a big deal when PE Obama may have to spend more to help the economy....seems war spending is fine but God forbid it may actually help the American people who are in dire straights right now. Bush has wasted millions over these past 8 years and for what, especially in Iraq? Time to stop the whining and get used to the fact that more money is going to be needed to get this country back on track. Those who don't agree will have to live with it, if it needs to be done that's the bottom line.

    Posted by Caj at 12/31/2008 @ 08:49am

11. YourJomamma, you have no idea what you are talking about. All you are doing is repeating the right wing ideology that has gotten us into this mess in the first place. If it got us into this mess, how could it possibly get us out? It's time to let go. You were wrong. It's okay - we all make mistakes. Unfortunately, the only way to move forward at this point is federal government spending. Eventually the private sector will come back though the economy will not be what it used to be because the "boom" was an illusion fueled by debt. We eventually have to live within our means but now is not the time to balance the federal budget. Almost all economists are in agreement on that at this point. Hopefully, except for those who never learn from history, most people now realize that cutting taxes for the rich and deregulation does nothing more than lead to disaster. RIP right wing failed ideology.

    Posted by cberkland at 12/31/2008 @ 09:03am

12. Didn't hear too many folks complaining on the right when Bush was and still is spending millions in Iraq on this bogus war!!----Posted by Caj at 12/31/2008 @ 08:49am

    Uh, that's BILLIONS....or 3/4ths of a TRILLION, actually, Caj.

    Posted by Mask at 12/31/2008 @ 09:13am

13. Uh, that's BILLIONS....or 3/4ths of a TRILLION, actually, Caj.

    Posted by Mask at 12/31/2008 @ 09:13am

    Sorry, my mistake...giving Bush a bit of a free pass there. (smile)

    Posted by Caj at 12/31/2008 @ 09:51am

14. I keep seeing these numbers thrown around -- a trillion here, $750 billion there -- and absolutely no evidence presented to justify any figure. I'd like to see some detailed reporting on where these numbers were arrived at, were they were pulled from. I have my suspicions, but this is a family website so I won't spell them out.

    Posted by S Thornton at 12/31/2008 @ 09:59am

15. Plans that impoverish those that have fixed income assets, pensions. Social Security, annuities, only reduce their ability to consume necessities and to slow the economy further. Every peenny that is borrowed depresses the purchasing power of the dollar. Those who have income find they must resist purchases, because their income does not go as far and, more importantly, because they have lost financial security.

    Restore the value of the dollar! Revise the CPI to reflect inflation truly and adjust for the all of the CPI lying that has been done since LBJ.

    Stop borrowing and spending by the Congress! Need money for infrastucture? Take it out of the "defense" budget!

    Posted by goedel at 12/31/2008 @ 10:31am

16. Posted by Caj at 12/31/2008 @ 09:51am

    No prob, it's easy to lose track of how much has actually been blown on the Iraq debacle.

    Think of it this way if you like...for the $700 Billion on Iraq?

    We could have put 1000 people on the Moon!

    Figuring a two man LM lander and $1.4 billion a mission. (Adjusted for inflation to 1970 Apollo rates)

    Posted by Mask at 12/31/2008 @ 11:58am

17. This is quite out of place, but Katha Pollitt seems to have rendered her blog unusable.

    Simply put, her Bill Ayers Whitewashes History, Again from December 8 seems a bit much from one who critiqued Cindy Sheehan's electoral challenge to Nancy Pelosi. That is infuriating; it's as if only remaining silent will satisfy Pollitt.

    Consistent in that silence seems to be enforced on And Another Thing. Thus, this spill-over. Sorry.

    Posted by claude at 12/31/2008 @ 12:08pm

18. Why should the left have to "justify" spending money to renew the economy?

    The Republican minority hasn't justified destroying it and they behaved like roaches when the light gets turned on when it came to justifying their theft of trillions of dollars.

    In twenty years the Right can claim that money was spent unjustly... and then spend three to four times more on their pet projects, until then it's just whining and nobody likes a whiner.

    Posted by squidboy6 at 12/31/2008 @ 12:51pm

19. Sounds very similar to the "New Deal". It will work, but not if outsourcing and Free Trade continues. The "only" purpose for "Free Trade" is to drive down wages. Low wages means no disposable income to support the American Market or any market. A globalized economy means that if one major market fails, the rest of the world also fails. National markets limits failure to one country. Individual countries must strive for national economic independence behind trade barriers.

    Posted by P. J. Casey at 12/31/2008 @ 1:45pm

20. Posted by YourJomamma at 12/31/2008 @ 01:10am

    Weird. I was under the impression that for 6 of the last eight years this country was run by a Republican with a Republican Congress yet you still blame the Democrats who had no control in the government. Why is it whenever anyone points out a Republicans error it's everyone's fault but his. However when something happens on a Republicans watch it's always the Democrats fault.

    Posted by Cccomfo1 at 12/31/2008 @ 3:02pm

21. Posted by Cccomfo1 at 12/31/2008 @ 3:02pm

    Here's where MAASCH will tell you "Bush wasn't a REAL conservative" and "I totally opposed Bush and the GOP Congress with their excessive spending"....

    right after 2006, that is.

    Posted by Mask at 12/31/2008 @ 3:35pm

22. Posted by Mask at 12/31/2008 @ 3:35pm

    This is why it's funny not picking a side. I think liberals and conservatives are both idiots. Neither end of the spectrum would work without the other end of it. It's like a seesaw, if you have a fat kid on one end and skinny kid on the other it can't balance out. Anyone who sits here and says that we need to follow only the right wing agenda or only the left wing agenda obviously has no clue of how the world really works.

    Posted by Cccomfo1 at 12/31/2008 @ 3:41pm

23. However when something happens on a Republicans watch it's always the Democrats fault.

    Posted by Cccomfo1 at 12/31/2008 @ 3:02pm

    Absolutely right, nothing has been the fault of the Republican party for 8 years and of course it's been the Democrats fault the last two!!!! That's why the Republicans will never get back into the White House for a long time to come....they just can't accept responsibility for the state of this country!!! We only have one President and that was Bush, the buck stops with him.

    Posted by Caj at 12/31/2008 @ 3:45pm

24. Posted by Caj at 12/31/2008 @ 3:45pm

    Eh the Democrats do it too. To Demo's everything is the Republican's fault. The world is a seesaw. If things tip too far one way it's both sides fault because neither did anything to stop it. This recession is both sides fault because they were both on power trips and were both playing politics of party instead of trying to find equitable solutions to problems. Partisan politics has become too much of an issue in this country where every group is trying to push things as far in the way of their party as possible without any care of what that will do to the country itself. The Republican agenda is just as worthless and impractical as the Democratic agenda.

    Posted by Cccomfo1 at 12/31/2008 @ 4:09pm

25. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."-----Posted by lvliberty1 at 12/31/2008 @ 3:40pm

    So if Congress passes the War Powers Act for the President, circumventing the Constitutional power of Congress to "declare war"....you'd have a problem with that, right?

    Posted by Mask at 12/31/2008 @ 4:16pm

26. Posted by Cccomfo1 at 12/31/2008 @ 3:41pm

    Naturally. Rarely do those on the "edges" of the political spectrum gets what they want...if they do, it's usually under a dictatorship of either a socialist or fascist stripe.

    The closer you get to the Middle, the more positive action you see. B_KOOL (or those like him) and LVLIB (or those like him) hate that truism...but it's mostly the case of history.

    Posted by Mask at 12/31/2008 @ 4:19pm

27. Eh the Democrats do it too. To Demo's everything is the Republican's fault

    Posted by Cccomfo1 at 12/31/2008 @ 4:09pm

    Democrats can be at fault also you are right there, but for the Republicans to try and blame the mess we are in now on the Dems is out of order. When they have the purse strings for the past 8 years and total control of the house until 2 years ago... who does that leave in charge??? PE Obama has said the buck stops with him and he's right, we will hold him accountable once he takes office. Bush or the Republicans do not see it that way at all, they Dems are the ones who are at fault...how can that be?

    Posted by Caj at 12/31/2008 @ 5:02pm

28. I would like to add an item for investment that is not particularly popular with Democrats or Progressives---provide loan guarantees for the construction of Nuclear power plants. Eventually we will come to the realization that this is the only practical approach to energy independence, reduction of CO2 and environmental protection. Wind and Solar are costly (although we could simply decide to waste the money) and are incredibly resource and land-intensive (the space required is mind-boggling), and since they are not constant sources of power must be backed up by fossil-fuel-based plants (natural-gas fired is the most practical) with a capacity nearly as great as the wind/solar.

    Nuclear power is safe, cheap and virtually without limit. The incredible energy density of uranium means initial environmental impact is very small (the mines and the plants are really tiny). The fears and misconceptions regarding nuclear power are based on error of fact (I know ALL of the arguments). This infrastructure investment will provide immediate jobs, the acquisition of advanced skills (that we will need) and will provide good jobs and cheap electricity for at least 60 years. The coming development of the electric car will mean that we will have a huge need for additional electric power, that we can free ourselves from dependence on foreign-supplied fossil fuels and that we can REALLY make a difference on the climate-change front.

    Posted by SK9 at 12/31/2008 @ 5:29pm

29. Hang on a minute. When did Wall Street and big banks become the backbone of the economy? Too big to fail! Crap! The futures market is a nineteenth century invention. Go back and read economic history again for the fundamentals. [Progress and Poverty by Henry George, e.g.] All wealth is based first and foremost on agriculture. If you don't eat, you don't do nothing else. Labor built this country. Pioneers settled the land. Farmers tilled the soil. (Okay, we had to slaughter a few Indians along the way, but bankers sure as hell weren't out there with Custer.) Union organizers and fighting union men won the rights and benefits working persons have enjoyed since the '30's. Soldiers, sailors, airmen and Marines (the common man) won WWII. Let's get real.

    Posted by Tunnelrat at 12/31/2008 @ 5:35pm

30. Are we about to inflate away (cheapen) most debts? Posted by HAPPYLonghorn at 12/31/2008 @ 6:40pm

    As opposed to the Republican policy of just not paying them?

    Posted by Cccomfo1 at 12/31/2008 @ 7:16pm

31. Posted by HAPPYLonghorn at 12/31/2008 @ 6:40pm

    Oh yeah and why is the country in massive debt? OHHHH yeah because Bush decided he wanted to put things on the countries credit card instead of tax and spend.

    Posted by Cccomfo1 at 12/31/2008 @ 7:20pm

32. Could it be that we have come to that moment... the one we all knew in the back of our minds could eventually arrive... where our personal incomes no longer reflect economic domination, expansion, and exploitation of the environment?

    We may, in fact... be there now.

    That the 'noble savages', as Galbraith calls them... those few die-hard free-market aficionados that are still standing... have rather recently become a quaint and courteous clique of shelve-able brick-a-brack antiques guaranteed to harken us back to the 'good old days' of our youth from their safe and secluded enclave upon the bureau in the study...?

    However... as it has generally been considered imprudent to legislate sweeping new legislation from the confines of of an impending emergency... many just want the old system patched up, pot-holes filled, and band-aids applied... for a system that is obviously not operating effectively... but it is, at least, functioning at all...

    If a fundamental restructuring of the economy is in order... and few will disagree that it is... then we must take care not to spend too much on a system we are just about to upgrade... for to do so after our economic calamities of late would be throwing good money after bad...

    May I remind you that our basic premise for a successful economy is production and consumption... in far too many cases excess production and consumption... and yet our planet, our bodies, and our income brackets all have rather small zones of optimal health and operational expediency...

    In other words... there is a great deal of waste in our present system... waste which was perhaps 'acceptable' in times of industrial expansion and technological growth... but the recycling programs that seem commonplace today but were unheard of 40 years ago...

    Posted by ttr at 12/31/2008 @ 8:23pm

33. Just wondering- if we can spend our way out of a recession, why not spend to keep us from going into recession? I presume that would be much cheaper, and less painful for The People.

    "Federal Arts and Writers Project"?! Good God! Isn't there enough truly crappy art and writing around right now? Just what we need.... government-approved art projects.

    Posted by twillie at 01/01/2009 @ 01:06am

34. the WPA actually reflects the understanding that presidents have an inherent authority in Article 2, to launch a defense of US security without a formal declaration of war.-----Posted by lvliberty1 at 12/31/2008 @ 4:28pm

    So the Constitution is a "living, breathing document" and "we can extrapolate new powers from it"....

    as long as it's war and the Presidency?

    Posted by Mask at 01/01/2009 @ 07:43am

35. Why is every one still avoiding the issue that we have shipped all our industries out of country? We are decades away from regaining any of our past labor and industrial capacity and we will have to borrow from china to do it. What is the big secret, 10 percent of us own 80 percent of the wealth, and as long as we continue to believe the myth," that wealth creation is hiring people at subhuman wages", we are not going to crawl out of this mess.

    Posted by julien38 at 01/01/2009 @ 09:49am

36. Posted by julien38 at 01/01/2009 @ 09:49am...

    Though I do agree with you that retooling seems to be a distant star at times... I am not of the conviction that it will take decades or even years to do so. The devaluation of manufacturing jobs in America has been a predominantly psychological assault... backed up by strong economic incentives which were legislated into being (implying, of course, that these 'incentives' can just as easily be legislated out of being or reversed)... for the benefit of very few interests.

    The global economy... though real and necessary... does not necessitate the 'free trade' agenda we now consider plausible... because as it stands now, it is extremely biased against the need American workers have of self determination and economic security.

    Cheap Chinese merchandize is fine... to a point... but it hardly substitutes for a powerful, potent and creative manufacturing base. Neither does it restore our pride in craftsmanship.... which has from this country's inception been the dominant characteristic of America's tradesmen...

    These characteristics simply need to be called into play once again, for they lie latent beneath these effeminate investment scandals... and provide healing rejuvenation to the withering amassment of the needlessly disenchanted.

    We must have a stake in our future and we have been guaranteed the commanding voice on this issue by our founding fathers... and 'the powers that be' need to openly acknowledge this and assist, rather than obstruct the true patriot's progress...

    Posted by ttr at 01/01/2009 @ 1:51pm

37. note to ttr: God I hope you're correct

    Posted by julien38 at 01/01/2009 @ 3:31pm

38. Posted by lvliberty1 at 12/31/2008 @ 3:40pm

    Constitutional or not, wars are certainly undermining the financial viability of the republic. When that republic fails because of your war spending, I guess you'll find cold comfort when you argue it was all on the up and up as it swirled down the drain.

    Posted by HAPPYLonghorn at 12/31/2008 @ 6:40pm

    Taking projections from decades down the line is dishonest, Happy. Particularly, when those obligations are in trouble partially because those full funding for those liabilities has taken the second seat behind "democracy spreading".

    I'd like for us to have an honest discussion on how much it has cost us to "spread democracy" since the passing of Social Security. Then, we can have an intelligent discussion about your ideas about tax and spend - and the relative merits of Social Security versus the various war programs.

    Part of the problem is that everyone wants to make up a figure for social security - because it can be plausibly done. The accounting for war spending is so bad, there is no good way to do it - but for honesty sake we should try.

    Posted by srjenkins at 01/01/2009 @ 4:52pm

39. here is what the CPC and all progressives should demand: should champion the "healthcare bailout" for *all* industries that i describe below, one that would be much less costly to taxpayers and would give an enormous 20%-of-the-GPD stimulus to the economy:

    the obama administration should start accepting into medicaid the workforces of any company for 2/3 of the payments that the company is making to the clepto-medical complex right now.

    start by putting all autoworkers on medicaid in exchange for 2/3 of the current humongous health-care bill of the auto industry (GM's 2007 healthcare bill was $4.6 billion !).

    50% of these 2/3s would be given back to the auto industry as a "loan deal" to "bail them out", of course with strings for public transportation items, preferred stock with guaranteed 10% dividends, etc.. and any other troubled industry would also qualify for such loan-back deals.

    it's win win :

    i) it would help the competitiveness of usa manufacturers big time, e.g., vs. manufacturers in canada that are "subsidized" via socialized health care.

    ii) it would bring in "paying" users into the medicaid system, i.e., it would work towards "expanding" universal care (since medicaid already covers bad-risk types). this way medicaid would become much less of a money sink and, if the expansion succeeds fully, it will even make money for the federal government.

    Posted by erplus at 01/01/2009 @ 5:51pm

40. iii) through this medicaid expansion the obama gov. would showcase its capability to deliver "efficient government" and to mobilize the "public service spirit" (of young doctors and nurses, e.g.) and demonstrate that decent health care can be delivered at much lower cost (one would keep the books for paying users separate from those for indigents, etc). the whole is eminently doable even without "innovation" (just emulating the low-cost, super-efficient administration of soc.security would do most of the job).

    iv) it would draw the clepto-medical complex into a low-cost race that they can neither win nor fend off through demagogy peddled by bribed pundits. v) since health care is ~20% of the gpd, this is truly the biggest and easiest money to redistribute (easiest because everybody hates the clepto-medical complex).

    vi) unions would appear as "giving up something" (i.e., give up fighting for expensive private health care for their members, which is not really a concession of course).

    furthermore, paleo-conservatives would be dumbfounded if the program is sold using lines like

    i) "letting the state do what the market cannot do" (which according to conservatives is the only acceptable role for the state). ii) "fighting and preventing illness is like fighting and preventing crime". ii) "repealing the health-care tax on the profits of employers". iii) "restoring the competitiveness of national entrepreneurs vs. foreign competitors" (by lowering drastically their health care bill). iv) "no privileging of heavily-union, lobbyist-hiring companies", since all companies would qualify (small employers hate unions and bigger companies). v) "breaking the choke hold that the clepto-medical cartel has on the nation by jumpstarting a market-place race for cheaper healthcare

    Posted by erplus at 01/01/2009 @ 5:51pm

41. I believe there is no way around the present crisis in this country,a depression, than to have a stimulus package the Progessives suggest. they have listed the areas where the money will go to nbest serve the people who so desperately need help. Katrina van is a thoughtful,intelligent thinker. Do not label her or other progressive thinking people, Socialists. That is simply inflammatory and inaccurate. The Progressive minded do not denounce democracy or the Constitution of the USA. They are calling for transformative solutions to out-dated and often corrupt policies that have brought us to this depression,that is not on;ly financial,but moral as well.

    Posted by myaisling at 01/01/2009 @ 6:24pm

42. If we hadn't approved the $750 billion bailout.

    We could take that money, add $1.25 trillion for a total of 2-trillion.

    Take 2-trillion bucks;

    $2,000,000,000,000.00

    divided by the US population:

    $2,000,000,000,000.00 / 305,186,613

    and every child, woman and man gets...

    $6 553.36

    And since this is a consumer driven economy,,, well you get the picture.

    Of course we're not going to do that.

    We're going to make a TINY group of people RICH.

    Yes it will be a DIFFERENT group of RICH people this time.

    But hey, that is a CHANGE!

    Posted by bleedingheart at 01/01/2009 @ 11:42pm

43. Posted by erplus at 01/01/2009 @ 5:51pm

    Who, or what is the "clepto-medical complex??

    Posted by twillie at 01/02/2009 @ 01:50am

44. ...Cutting expenses when money is tight is the correct solution but we will never see that occur. The same people who set up the conditions and the events of the economic crash are now being put in charge of "fixing" it. I can't wait for the healthcare plans. ...

    Posted by YourJomamma

    We have seen this occur. Just check out Herbert Hoover's strategy to fix the crash of 1929 and the oncoming depression. He tried to balance the budget. Now his name is synonomous with failure.

    Posted by koroviev at 01/02/2009 @ 03:18am

45. B KOOL, Israeli's as "rabbid predators": i think not. it is so easy to sit back in the USA, watch & read endless amounts of news and cast your judgements. get off your behind and go live in Israel for 3-5 years and let me know if you'd write the same dribble. all Americans should be required to live somewhere else for 3-5 years and then go back to the USA and do something for their country. too much freedom turns in on itself and creates educated ignorance and bloated arrogance.

    Posted by ojai44 at 01/02/2009 @ 08:30am

46. Posted by HAPPYLonghorn at 01/01/2009 @ 9:48pm

    The whole let's bury our heads in the sand tactic? Interesting.

    On one hand, you complain about taxes. On the other hand, you are unwilling to make an effort to figure out what "defense" and "democracy spreading" are costing you in taxes?

    Let's start with the current budget if you don't want to do a historical trend. Let's also use the War Resisters League numbers, since they seem to be the only ones trying to figure out actual war expense. See link below.

    They estimate that a full 18% of the current federal government is being used to pay the debt for military expense. And 36% is being used current military expense when you add in all the special appropriations that aren't on the budget.

    Now, contrast that picture with what the Federal Budget tries to sell us on the same page. Does this suggest to you that perhaps you need to pay a little closer attention to this issue, if you want your taxes to be lower?

    But no, you look to social security. And the fact is, if social security were wiped out tomorrow. The military expense problem would still be there - except you would have to find some new scapegoat for the military problem.

    http://www.warresisters.org/pages/piechart.htm

    Posted by srjenkins at 01/02/2009 @ 10:47am

47. "I said it merely reflected what was already understood as the powers of the presidency granted by the constitution. It did not grant new powers."----Posted by lvliberty1 at 01/01/2009 @ 4:54pm

    If you feel I'm distorting, then let's QUOTE-

    According to the CONSTITUTION Article I, Section 8, Clause 11 "Congress shall have Power...To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"

    and according to Article 2 (which you cite) it says QUOTE, "The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States". It then referrs to Exectuive officer opinions and the subject of pardons.

    Now, where is "that presidents have an inherent authority to launch a defense of US security without a formal declaration of war"?!?!????

    Answer? The EXACT same place it says in the Preamble that "promote the general welfare" can include Social Security or even Federal health care.

    If you aren't a strict Constructionalist...that is.

    Posted by Mask at 01/02/2009 @ 10:50am

48. The bottom line is going to be, whether Prez Obama will have WHAT-IT-TAKES to reign-in and curb T-O-X-I-C Corporate influence, STOP outsourcing blue&white collar jobs AND ''CAP'' Corporate profits based on drug prices, insurance premiums etc, etc

    Posted by Mad As Hell at 01/02/2009 @ 11:11am

49. I feel PE Obama is as outraged as the rest of us as to how this country has gone down the pan over these past 8 years. I don't see him as a miracle worker by any means, he has so much on his plate facing him on day one....but I do have great faith that he will do his very best to get this country back on track. Patience will have to be something we will have to tolerate for a while, nothing gets fixed overnight but it will eventually get better...just wait and see.

    Posted by Caj at 01/02/2009 @ 11:46am

50. How long before we start tossing around terms like "quadrillion" and "quintillion"?

    My guess is not very long at all. With the hyperinflation this line of thinking will create, a trillion dollars won't get you a functional economy, but it WILL get you a loaf of bread!

    Me? I'm looking to see what country I'm going to move to. Social chaos is just SO tedious.

    Posted by joe_independent at 01/02/2009 @ 12:36pm

51. Me? I'm looking to see what country I'm going to move to. Social chaos is just SO tedious.----Posted by joe_independent at 01/02/2009 @ 12:36pm

    Another "Alec Baldwin" moment...this time from the Right!

    heheh

    Posted by Mask at 01/02/2009 @ 1:37pm

52. Economics 101 needs to be a requirement for any political commentary. By definition, government redistribution of funds is not a stimulus - it is a drag on the economy. History has demonstrated repeatedly that the only effective way to grow the economy, reduce unemployment, and increase government revenues is by cutting taxes. And yes, cutting corporate taxes is equivalent to cutting income taxes because corporations merely collect the tax from their customers and shareholders, they still have to generate similar after-tax returns in order to be viable.

    Posted by dudzinse at 01/02/2009 @ 1:47pm

53. Posted by dudzinse at 01/02/2009 @ 1:47pm

    Actually, if you look at tax rates over time, it looks like economic growth is tied to higher tax rates.

    The period after World War II was one of the greatest economic expansions in our history, and it had nothing to do with tax cuts.

    Put down the flat tax book and these other fantasy scenarios where government revenues increase by cutting taxes. This may be true in cases where the tax rate is extremely high - but it isn't always the case.

    I love people talking about Economics 101, perhaps that is precisely the problem. A little knowledge is a dangerous thing, worse than none.

    Posted by srjenkins at 01/02/2009 @ 1:59pm

54. http://www.visualizingeconomics.com/2007/ 11/03/nytimes-historical-tax-rates-by-income-group/

    Link here btw.

    Posted by srjenkins at 01/02/2009 @ 2:00pm

55. Posted by lvliberty1 at 01/02/2009 @ 2:09pm

    Again, interesting, LVLIB, that you cite ANALYSIS of the Constitution and INTERPRETATION of it to back up your case....and not the actual words in the Constitution.

    Why not apply that to...Social Security? Or Medicare? Or the 1938 Food & Drug Act (which you opposed)?

    You want an "expansive, LIBERAL" interpretation of war powers ...because you like the idea of a President being able to start a war anytime he wants and Congress gets to rubber stamp it or face political attack if they cut funding and end it (primarily because you are at heart an authoritarian, not a libertarian)...

    but when it comes to domestic matters, you suddenly want "reserved to the States" and "promote the general welfare doesn't mean nationalizing health care or providing old age pensions...that's un-Constititional because there's nothing in there except Congress can raise taxes!!!"

    A TRUE libertarian argument can be made against the "socialism" that you oppose (i.e. everything done since 1933)...but that same libertarian argument MUST be applied to the war powers of a President...

    otherwise the arguer is being hypocritical and showing a DIFFERENT sort of political ideology.

    BTW, yes, I think Clinton should have obtain specific declarations, if not war, in the spirit of a "DOW" from Congress for those actions.....I'm consistant.

    Posted by Mask at 01/02/2009 @ 2:38pm

56. Another "Alec Baldwin" moment...this time from the Right!

    heheh----Posted by Mask at 01/02/2009 @ 1:37pm ________

    Difference: Alec Baldwin regrettably stayed here, and his threat was based on politics.

    I won't be, as my thought is based less on politics than economics -- fortunately, there's demand for my line of work in other English-speaking countries, and my wife and I have always wanted to live abroad for a while. I've actually already started the process, preferring to beat the rush.

    Now that I think of it, I'm glad Alec is still here. Gives me less chance to accidentally bump into him.

    Enjoy!

    Posted by joe_independent at 01/02/2009 @ 3:03pm

57. Posted by dudzinse at 01/02/2009 @ 1:47pm

    What did RONALD REAGAN do in regards to corporate taxes, dudz? (And please cite your sources.)

    Posted by Mask at 01/02/2009 @ 3:04pm

58. Just read on Politico that Democratic governors are requesting a trillion dollars, to ' stay afloat ' . It didn't mention Republican governors. So I'm curious, is it ONLY dem. govs. asking for money, and if that's the case, what does that tell you ?

    Posted by rannan3 at 01/02/2009 @ 3:34pm

59. Posted by joe_independent at 01/02/2009 @ 3:03pm

    What "economics" and where are you contemplating emigrating to?

    Posted by Mask at 01/02/2009 @ 3:52pm

60. LL wrote: "the WPA actually reflects the understanding that presidents have an inherent authority in Article 2, to launch a defense of US security without a formal declaration of war."

    Inherent authority, huh? As in, it's not spelled out clearly, but we'll say the prez has this power anyway because it's convenient?

    I'm wondering if someone says judges have the inherent authority to say what the constitution means, you know, as part of doing their normal jobs as judges - if you would be cool with that?

    ;)

    Posted by urmygyro at 01/02/2009 @ 4:38pm

61. LL - finding intent from people who've been dead for hundreds of years is useless (because any quote you can find supporting an argument on an important issue - someone can find a quote supporting the opposite of your position) and irrelevant (the document - the Constitution - speaks for itself).

    Posted by urmygyro at 01/02/2009 @ 4:52pm

62. "Cram-down: A court-ordered reduction of the secured balance due on a home mortgage loan, granted to a homeowner who has filed for personal bankruptcy...?

    We will have a tough time getting out of the recession and mortgage crises as long as the following dire statistic remains true: More than one in six U.S. homeowners are underwater. They owe more than their home is worth. And, since their primary home is usually their biggest investment, that means their liabilities are greater than their assets. In essence, they're bankrupt.

    And, it's greater than one in six in many parts of the country, particularly those places that experienced the real estate bubble-on-steroids earlier this decade. Probably, most people who bought homes in Southern California from 2003-2007 are underwater.

    The solution: Cram downs. Sen. Dick Durbin, no doubt with the approval of his former junior senator Barack Obama, has reintroduced legislation allowing bankruptcy judges to cram down the debt principal of upside down mortgages. Obama supports this. Watch for cram-downs to become a major stimuli for the sick mortgage sector this spring.

    Read more about it at http://blog.jimgogek.com

    Posted by jgogek at 01/02/2009 @ 4:55pm

63. jgogek - liabilities being greater than assets is "insolvency" - which doesn't necessarily lead to bankruptcy - this requires increase in income, in most cases - but good luck finding that right now, right!

    as long as our country continues to see growth only in service/banking (which don't create wealth for the little guy) instead of creating things for sale (here and elsewhere - which does create wealth for the little guy) we will fail.

    we don't have anything to sell

    Posted by urmygyro at 01/02/2009 @ 5:00pm

64. The structure of the Constitution is critical to understanding it. The first Article is about the legislative power in a democratic republican – democratic as to the House and republican as to the Senate. The Founders were basically fearful of and hostile to Executives. They personally knew how exceptionally difficult it was to control them, and how often Chief Executives engaged in vain pursuits of glory by waging wars.

    Hence, the ideal virtues in a Constitutional Chief Executive are personal humility and a modest ego. The Constitutional idea was that the modest, humble Chief Executive was simply the chief bureaucrat – an official to be charged with overseeing the faithful execution of the laws by the bureaucracy.

    Among the branches of the national bureaucracy, there was naturally to be a war department, as it was once called, in the days before the many euphemisms of national defense corrupted our understanding and our liberties. The President was thus also expressly given the responsibility of commander in chief – to be its chief bureaucrat as well. The reason for this express textual assignment of authority to the Presidency had nothing to do with the Congress, or limitations upon the Congressional powers to control the commitment of the nation to the waging of war. This express text, rather, informs all military personnel that their ultimate chief is the President – i.e. this text enforces the American tradition, that a civil government controls the military bureaucracy, through its chief bureaucrat, himself (or herself) ever subject and faithful to a legislative supremacy. <continued>

    Posted by DLE at 01/02/2009 @ 5:01pm

65. <continuation> The Founders, in short, did not imagine the much later invented and misleading theory of a three-headed government – a Cerberus guarding the gates of some hell. The Founders did not imagine separate but equal powers vested in coordinate equal federal institutions. They had a limited unitary government in mind, one in which legislative power was inordinately supreme and free, but still subject to the textual limitations of the Constitution.

    All the latter day idolatry of presidential power is simply a vast Constitutional heresy. <end>

    Posted by DLE at 01/02/2009 @ 5:03pm

66. LL wrote: "Interpreting the constitution as it applies to laws and the rights of individuals is the responsibility of SCOTUS. No one on the right or left disagrees with that."

    poor LL - you quote thomas jefferson in a previous post to Mask - are you aware he was staunchly against the supreme court having the right to review laws created by congress and executive acts? I mean staunchly. just goes to show the futility of trying to use the "intent" of people who've been dead for hundreds of years.

    LL wrote: "The difference is in the method of interpretation. Conservatives as exemplified by Scalia say (and I believe correctly) that we have to interpret according to the intentions of those who wrote it. And that if we find that it doesn't entirely fit where the people are at a specific time, they should amend it."

    Yet Scalia is one of the most activist judges that exists today. He and other 'conservatives' on the court the past decade have declared more laws passed by congress unconstitutional than you can shake a stick at. Where's this unelected official get off saying elected officials in a co-equal branch are passing unconstitutional laws? And why does he think it's the supreme court's right to overturn laws made by congress? (i'll give you a hint - read the constitutional carefully - no where w/in the document does it express that the supreme court has even the right of judicial review - never mind judicial supremacy).

    So if Scalia wants to go by the inent of the people who created the constitution (and who, exactly? which people? the writer? the delegates who met in philly? the states that voted to adopt it?)....continued...

    Liberal interpretation says the constitution is a living document to be understood in light of changes in opinion

    Posted by urmygyro at 01/02/2009 @ 5:08pm

67. ...Scalia acts as if he knows the clear cut intent. Let me clue you in - he doesn't. Nobody does. It's all a matter of interpretation - and saying you know what was intended hundreds of years ago - not by the words actually in the document - but by quoting outside sources (like federalist papers, etc) is itself an act of interpretation.

    Here's a question - if the supreme court has the right of judicial review (which means the right to review laws passed by congress and executive acts) then why didn't the constitution simply say so?

    Scalia wasn't alive when the founders were. By infusing his interpretation of their intent (by using 'evidence' outside of the words in the constitution itself) he is making the constitution a living/breathing document.

    Of course - you're welcome to believe Scalia has a route into the founders' intent by using evidence outside of the constitution - and pretend his beliefs and biases don't come into his interpretation - but then you'd be naive, wouldn't ya?

    Posted by urmygyro at 01/02/2009 @ 5:14pm

68. Re the War Powers Act. This may actually be worth discussing.

    Where did it come from? Was it the "creation" of new powers, or the "discovery" of existing ones hiding behind various penumbras and emanations, before the discovery of which, was just plain old against the law?

    ol'schneller

    Posted by schnellerheinz at 01/02/2009 @ 5:18pm

69. ol'schneller - it was an ineffective attempt to limit the president's power to start shit with people that piss him off. so i wouldn't call it a creation or a discovery - i'd call it a "you've wrecked the car too many times - we want the keys back" resolution

    Posted by urmygyro at 01/02/2009 @ 5:27pm

70. the real issue is that congress has the right to tell the president to get the soldiers the hell out of wherever he sent them - but the democrats are too cowardly to do this to w. way too cowardly. some people that need to do some real soul searching - because they could have used their numbers long before now to shut shit down until they got what they want - but i guess it's easier to run as an anti-war candidate than it is to act as an anti-war official once you get to office.

    Posted by urmygyro at 01/02/2009 @ 5:30pm

71. So pathetic. I enjoyed seeing George Will scoff at you on This Week a couple of months ago. Anyway, the idea that this redistribution of monies will do anything at all to "fix" the economy is pathetic, sophomoric, and lame. The inefficiencies in the programs posited will shatter all records; the actual value output of the redistributed effort will be a fraction of the initial worth. Or maybe it's your idea to just print money, debasing the currency from its already low levels? Anyway, you're really not even worth responding to; partisan, poorly educated. Government doesn't create jobs, honey (the "honey" is on purpose). People do, businesses do. If you want a government state, you're in the wrong hemisphere....

    sUb,

    NYC

    Posted by sub at 01/02/2009 @ 6:56pm

72. What "economics" and where are you contemplating emigrating to?

    Posted by Mask at 01/02/2009 @ 3:52pm ______________

    Any port in a storm. Pursuing the following highest in the list. Please note that US will be dropping shortly:

    http://www.heritage.org/Index/countries.cfm

    Just saw that the Democrat Governors requested $1 T to stay afloat. Steel is requesting $1 T over the next two years. Indeed, trillion is the new million. I think I need to pick up the pace on my job search.

    Ludwig von Mises has an apt quote:

    All varieties of interference with the market phenomena not only fail to achieve the ends aimed at by their authors and supporters, but bring about a state of affairs which -- from the point of view of their authors' and advocates' valuations -- is less desirable than the previous state of affairs which they were designed to alter. If one wants to correct their manifest unsuitableness and preposterousness by supplementing the first acts of intervention with more and more of such acts, one must go farther and farther until the market economy has been entirely destroyed and socialism has been substituted for it.

    Hard to believe that's not contemporary writing.

    Any port in a storm, buddy, and we've got a Category 6 that's about to come ashore: Hurricane Obama.

    You can choose to ride it out, or you can choose to get the h*ll out of the way. Let me know how it goes. Once the electricity turns back on.

    Posted by joe_independent at 01/02/2009 @ 7:27pm

73. LVLIB, what about the 1986 Tax Reform Act?

    http://www.washingtonmonthly.com/features/2003/0301.green.html

    Posted by Mask at 01/02/2009 @ 7:30pm

74. Posted by joe_independent at 01/02/2009 @ 7:27pm

    Curious, joe....why is it when Republicans are totally out of power...

    you guys suddenly start preaching the end of America and going all "survivalist" on us?

    Like you were back in the late 70s?

    Posted by Mask at 01/02/2009 @ 7:32pm

75. Posted by urmygyro at 01/02/2009 @ 4:52pm

    When it comes to war and the powers of the President in the Constitution?...

    LVLIB is a liberal.

    Posted by Mask at 01/02/2009 @ 7:34pm

76. Mask - LL types will never admit they interpret the constitution with their own politics in mind. Only the opposite side does that. LL's of the world are simply looking at the framer's intent (must have a crystal ball or a ouija board or some good smelling salts to figure out what guys 200+ years ago were thinking).

    Oh yeah - and let's ignore the fact that we have a WRITTEN constitution. We don't have to worry about the intent of the founders from sources contemporary to their lifetimes. We have their actual words in a written document!

    Posted by urmygyro at 01/02/2009 @ 8:14pm

77. Well said.

    He does the same with the bible.

    Posted by winyahn at 01/02/2009 @ 10:36pm

78. Curious, joe....why is it when Republicans are totally out of power...

    you guys suddenly start preaching the end of America and going all "survivalist" on us?

    Like you were back in the late 70s?

    Posted by Mask at 01/02/2009 ____________

    While I'm not a Republican (unless that's spelled with an "r"), I most definitely am _not_ a socialist (spelled with a "D").

    Regardless, if you don't see the difference between the late 70's and today, I obviously don't have enough keys on the keyboard, nor the patience, to go through it.

    Suffice to say: a) greater individual dependence on government; b) much greater national dependence on foreign lending; c) greatest creditor to greatest debtor nation; d) an inability to utilize our own resources; e) a populace who can't see more than one month down the road.

    Can't tell if you're a case in point, Mask, or just a mindless antagonist, like a noisome younger sibling.

    Good luck in the world in which you appear to be comfortable. I don't think you're going to like it very much.

    Godspeed to us both, in our respective directions. I don't wish anyone ill-will. Frankly, I'm just trying to make people see what I think is obviously right in front of us. I honestly hope I'm wrong, but it's not like a fiat currency has never collapsed before.

    If double negatives don't work, I'll rephrase: fiat currencies collapse. The US Dollar is fiat.

    Out.

    Posted by joe_independent at 01/03/2009 @ 01:17am

79. "All varieties of interference with the market phenomena not only fail to achieve the ends aimed at by their authors..."

    It is just startling, the faith of these Chicago boys in the damnrd market... Markets are an instrument to set prices in a society, they are not a goal/end in themselves. Do you think that the health and life of a human being should be subject to market pendulums? In that cases I prefer so much more universal healthcare to the market because this is about ethics, not markets. Is there fair markets when there is oligopolies, monopolies and fiscal policy such as "supply side economics" where all the incentives go always to the powerful? Who in the world thinks banks make a decent profit out of fair competition with other banks? Is it much more near truth they are associated to suck the blood out of the public? Are not recent events proof enough? What about deceit? A commonplace of marketing "techniques", seldom are the customers really informed or get all the facts. Is this market forces? Are the consumers able to organize to repeal these kind of mimmicks? Yes, you will say, but in the long run those products will be proven not worthy by the market. The US auto manufacturers have been flunked by the market? I will say only partially, they have been flunked by the distortions of our "free market" compared to the Japanese/German internal markets. Now with this crisis, do prices other than petroleum plummet as well? Hummm... seldom the markets work in favor of the people, why? Can anybody explain that?

    Posted by Frank42 at 01/03/2009 @ 02:04am

80. Posted by lvliberty1 at 12/31/2008 @ 3:40pm:

    "Katrina appears to be almost salivating at the prospect of a complete socialist revolution. Hopefully Obama will be able to resist the pressure from the CPC socialists in Congress and the Katrina's to not fully destroy our nation as these socialists desire."

    You right wingers crack me up. Your ideology has destroyed our country and now is proven to be the failure that us social democrats always knew it was. Oddly, you accuse us of wanting to destroy the country. It's time to grow up and face the facts. We need to change course in our country. Only a fool continues to believe the same old thing after it's been proven not to work.

    Posted by cberkland at 01/03/2009 @ 10:36am

81. Posted by lvliberty1 at 01/02/2009 @ 10:58pm

    Really, want to tell me where it says right to privacy?

    Amendment 9

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    This was included because the founders were concerned that an enumerated Bill of Rights would lead people to believe, mistakenly, that those were the only rights.

    I think privacy fits Amendment 9, and considering measures such as National ID, it seems reasonable to also bring Amendment 10 into the discussion as well.

    Posted by srjenkins at 01/03/2009 @ 2:15pm

82. Posted by lvliberty1 at 01/03/2009 @ 2:56pm

    "that is an amazing bit of construct. It's invented out of whole cloth with no suggestion of any context remotely suggesting privacy."

    From the link below:

    "The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment."

    http://www.law.umkc.edu/faculty/projects/ ftrials/conlaw/rightofprivacy.html

    You'll also notice in the sidebar where the 9th is indicated as a possible general provision for privacy as I stipulated.

    Also, again, we have with you making bold claims, but not providing any rational argument for those claims. Don't think I don't notice that when I point out problems in your argumentation - you simply ignore it because you can't be bothered to defend your perspective.

    Posted by HAPPYLonghorn at 01/03/2009 @ 3:07pm

    Sounds like you are afflicted with Obama Derangement Syndrome. Turn off the Rush Limbaugh show, and maybe medicate yourself out of awareness of the fact that you voted for Obama in the primaries.

    I've never voted for Obama. It seems like he is much more YOUR president than mine - particularly with his moderate right conservative politics. Why not just embrace that?

    Posted by srjenkins at 01/03/2009 @ 4:12pm

83. Posted by lvliberty1 at 01/03/2009 @ 4:34pm

    But it is the federal government that is one of the biggest threats to privacy, Real ID for instance. And as the link clearly illustrates, some of the listed rights in the Constitution are privacy issues.

    Posted by HAPPYLonghorn at 01/03/2009 @ 4:36pm

    The 9th, and the threat the federal government presents to privacy, are a legitmate approach that you just can't waive away cause you don't like it.

    Posted by srjenkins at 01/03/2009 @ 6:03pm

84. I wrote: "LL types will never admit they interpret the constitution with their own politics in mind. Only the opposite side does that. LL's of the world are simply looking at the framer's intent (must have a crystal ball or a ouija board or some good smelling salts to figure out what guys 200+ years ago were thinking). Oh yeah - and let's ignore the fact that we have a WRITTEN constitution. We don't have to worry about the intent of the founders from sources contemporary to their lifetimes. We have their actual words in a written document!"

    LL responded: "Really, want to tell me where it says right to privacy?"

    haha!

    Oh poor LL, you refuse to respond to the point. You (and the Scalias of the world) believe YOU have the sole ability to properly interpret what the intent of the framers was. You refuse to admit you are using your biases and beliefs in interpreting their 'intent.' You act as if your conducting a perfectly straightforward exercise, like a robot or computer would do - and the silly liberals simply can't leave their politics out of it.

    Newsflash - all interpretation of the constitution is political. Including yours when you claim to know the framers intent.

    Posted by urmygyro at 01/03/2009 @ 7:44pm

85. LL wrote: "Understood that a leftist SCOTUS invented these things out of no legitimate reasoning. They are not federal but state issues according to the constitution."

    So, LL, why did the conservative Supreme Court since the late 90's make medical marijuana a federal issue? This court that supposedly respects the freedom of the states as sovereigns ruled that states couldn't permit medical marijuana possession because it supposedly conflicted with a federal program of policing marijuana (hmmm - isn't police work historically the realm of the states and their subdivisions? Why yes it is!)

    We can go through a laundry list of this conservative hypocrisy if you would like.

    When it fits their politics, conservative judges are all too happy to let the federal government supersede state governments.

    Posted by urmygyro at 01/03/2009 @ 7:51pm

86. <i>Posted by urmygyro at 01/03/2009 @ 7:51pm </i>

    OK...this isn't a good argument. The most you can say is that conservative judges should be consistent. It doesn't mean they should be consistently liberal.

    But onto the econ stuff, which is also interesting...

    Massive amounts of governmental spending, though they may help to address particular problems, will NOT actually solve the economic issues in the status quo. Many of the problems have come from a bizarre assumption that borrowing=benefit; that's only true when the borrowing can actually bring about a higher return (ex: a person can benefit from taking out loans for education, because it sets them up for higher wages later on). However, if you have $10,00, and you borrow 10,000 more, that doesn't make you 10,000 richer. Part of the reason the housing crisis got so bad is that people were taking out loans far beyond their ability to pay. Why on earth do we think it's a good idea for the government to be doing this as well?

    And yes, because I know what Mask is going to say...this applies to military spending as well. Though I think a fair amount of it is moot because the Iraqi government seems to want us to start leaving, spending on the Iraq War should be subject to criticism just like the rest of the economy. And for everyone attacking the huge cost of Iraq to turn around say "a trillion dollars...cool!" seems just a bit inconsistent.

    Posted by Thrawn at 01/03/2009 @ 11:11pm

87. And let me clarify the "be conservative" remark above. I mean conservative as far as judicial philosophy, not "promote political conservatism from the bench." One of the cases where Scalia was consistent, for instance, was a flag-burning case where he found it to be an exercise of Constitutionally-protected free speech even though he personally would rather that it be banned.

    The kind of textualism that Scalia defends (i.e. the original understanding of the Constitution when written) doesn't seem like it should be particularly novel. In fact, it seems like it should be intuitive. When legislative bodies acted to pass X act, it was understood to have some specific meaning; otherwise, enforcement would be kind of problematic. That specific meaning is binding until the law is changed via legislative process. This is how we understand statutes, and I don't understand why we wouldn't do the same with the Constitution.

    Here's the other thing. The Constitution can only be amended by the two means that it enumerates. Therefore, any process that effectively amends it while circumventing those means should be automatically regarded as suspect. That's exactly what "liberal" judging does. When the Supreme Court goes beyond the meaning of the Constitution as originally understood (and yes, amendments do quite properly change that understanding), they effectively amend it because its meaning changes from point A (before the Court ruled) to point B (after the Court ruled). That's problematic. The Court has no right to strike down taxes because it doesn't like the economic theory involved, nor does it have the right to invent a protection out of whole cloth that was never understood by anyone to be included in the Constitution.

    Posted by Thrawn at 01/03/2009 @ 11:26pm

88. "Here's the other thing. The Constitution can only be amended by the two means that it enumerates. Therefore, any process that effectively amends it while circumventing those means should be automatically regarded as suspect."---Posted by Thrawn at 01/03/2009 @ 11:26pm

    Given your view on the Constitution....

    is the War Powers Act Constitutional or "suspect"?

    Posted by Mask at 01/04/2009 @ 08:09am

89. Posted by Thrawn at 01/03/2009 @ 11:26pm

    You should state that among the three typical schools of the philosophy of law: natural law, legal positivism, and legal realism - you are a positivist.

    A legal realist would simply say that the law is whatever judges say it is - and your argument is based on wishful thinking about how the law actually works.

    Posted by srjenkins at 01/04/2009 @ 11:26am

90. <i>Posted by Mask at 01/04/2009 @ 08:09am </i>

    Suspect at best.

    <i>Posted by srjenkins at 01/04/2009 @ 11:26am </i>

    Sure. I tend to believe in a "natural law" framework for morality, but reject that framework when it comes to what democratic legal institutions are justified in enforcing.

    And yes, to some extent the law is what judges say it is, but I don't think that's fully responsive. I'm defending the framework that I think someone in the position of a judge ought embrace, and that many judges DO at least attempt to embrace. The fact that judges at least sometimes don't use the framework I'm defending isn't at all a reason why it's a bad framework.

    Posted by Thrawn at 01/04/2009 @ 12:41pm

91. Posted by Thrawn at 01/04/2009 @ 12:41pm

    I don't want to get too deep into it. But, there are a number of problems in your post.

    One is the problem of underlying legal philosophy. You are making a positive argument that statutes have meaning and that is the law.

    Which leads us to a second problem, an argument such as textualism or for that matter positivist legal theory runs counter to the notion of common law tradition, that clearly spells out that the meaning of the law in specific circumstances has to be judged and needs to be considered as a precedent for future decisions.

    To my mind, this empirical fact is a devasting one that makes positive law limited in its explanatory power, and like natural law, frequently doesn't describe how law works in the real world - which is indicated by your use of the "ought".

    Posted by srjenkins at 01/04/2009 @ 1:31pm

92. <i>Posted by srjenkins at 01/04/2009 @ 1:31pm </i>

    I don't think that's the case at all. Generally, a common-law framework is used in areas where no statutory law exists. In much of tort law, for example, jurisprudence is guided by common-law rules and understandings. In contrast, I'm not sure there's any such thing as a common-law crime. Though a court may find that Congress, in its writings, meant and was clearly understood to incorporate a common-law defense or something into the law, the statute and its meaning are still the ultimate standard.

    I think this is especially important when it comes to the Constitution. The entire purpose of a Constitution is to provide a clear definition of what government may do and what it may not do (and what different BRANCHES of government may and may not do). The creation of a Constitution specifically rejects a "common-law constitution" like Britain has. Moreover, the "illegitimate amendment" argument still stands, and has never been responded to.

    I don't think judges generally see the Constitution as incorporating common-law principles. That's why they try to argue that a specific phrase or mandate in the Constitution justifies their decision. Moreover, even if they often do, I don't understand why that's relevant here. All I have to defend is that they shouldn't. If it really is true, though, that all the Supreme Court does is create the Constitution in its own image when it decides a case, it has no right to overturn acts of Congress. If legal realism is true, judicial review is illegitimate.

    Posted by Thrawn at 01/04/2009 @ 1:58pm

93. by Thrawn at 01/03/2009 @ 11:11pm...

    --Part of the reason the housing crisis got so bad is that people were taking out loans far beyond their ability to pay.--

    This has been discussed at great length across America... and yet little is said about the market realities that confronted prospective homeowners over the last decade... namely... that the market itself was/is so inflated, that regular up-and-coming folk were hard pressed to find affordable 'fixer-uppers' at all...

    ...and their buying power... indeed, even the growth oriented economy around them... ambled along irresolutely...

    I'm dumbfounded by the number of vacant houses... many falling into disrepair... that are priced out of the 'starter home' bracket... while at the same time, America's work force is 'project challenged'...

    ...and because working wages have not climbed in 'real dollars' for 30 years... where is the possibility of main street prosperity supposed to come from?

    Junk Bonds? War with Eurasia? Computer enhanced bubble projections?

    So... people turned to credit and denial... not necessarily out of greed... but in order to survive.

    Let's not keep up this old habit of 'blaming the victim'... shall we?

    Posted by ttr at 01/04/2009 @ 2:54pm

94. <i>Posted by ttr at 01/04/2009 @ 2:54pm </i>

    I don't see why I am. I'm not saying that the people who acquired the loans were doing something morally wrong. All I'm saying is that the existence and continuance of those loans helped create the problems that we see in the economy. I think it could very reasonably be seen as a justification for doing something to aid people who need it, but it ISN'T a reason to make the problem worse by compounding the massive "debt spending" that helped us get here in the first place.

    Posted by Thrawn at 01/04/2009 @ 4:59pm

95. Posted by Thrawn at 01/04/2009 @ 12:41pm

    Then you must be in the Bob Barr conservative camp, THRAWN...

    cuz LVLIB (and others I'm sure) are perfectly happy with a Presidnet having essential power to start a war.

    Posted by Mask at 01/04/2009 @ 10:03pm

96. Posted by Thrawn at 01/04/2009 @ 1:58pm

    "In contrast, I'm not sure there's any such thing as a common-law crime."

    I'll refer you to Wikipedia article on Common Law on this because it makes the point for me:

    "For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law...In reliance on this assumption, modern statutes often leave a number of terms and fine distinctions unstated -- for example, a statute might be very brief, leaving the precise definition of terms unstated, under the assumption that these fine distinctions will be inherited from pre-existing common law. For this reason, even today American law schools teach the common law of crime as practised in England in 1789, because the backdrop of centuries-old English common law is necessary to interpret and fully understand the literal words of the modern criminal statute."

    "The entire purpose of a Constitution is to provide a clear definition of what government may do and what it may not do..."

    Yet, at the very beginning it was understood that its application needed interpretation which gave rise to judicial review - which is not in the Constitution.

    "If legal realism is true, judicial review is illegitimate."

    Why? It makes perfect sense to have someone interpret laws who is not charged with creating or executing them. It's an improvement that is de facto, but never formalized by an amendment. You might say it is common law in action.

    Posted by srjenkins at 01/04/2009 @ 11:28pm

97. Thrawn - there is no official "legistlative record" for the constitution like there are for laws passed by congress and by state legislatures.

    not as easy to gleen the founders' intent for the words in the constitution as you make it out to be.

    Posted by urmygyro at 01/04/2009 @ 11:29pm

98. Thrawn wrote: "If it really is true, though, that all the Supreme Court does is create the Constitution in its own image when it decides a case, it has no right to overturn acts of Congress. If legal realism is true, judicial review is illegitimate."

    Thomas Jefferson's ideas flowing from your fingertips to the keypad. The anti-federalists believed what you wrote whole-heartedly. They despised the idea of the supreme court being able to say congress and/or the president was acting unconstitutionally.

    obviously - jefferson and the anti-federalists lost in the long run.

    Posted by urmygyro at 01/04/2009 @ 11:32pm

99. Scary Obama tax cuts: He's competing with Dubya on who cuts more taxes. Well, let's say that's not the way economy works.

    -------

    Obama plans to unveil big tax cuts

    By MIKE ALLEN | 1/4/09 11:20 PM President-elect Obama plans to propose huge tax cuts for businesses and middle-class workers that will total about 40 percent of the package.

    Posted by HelenDAO at 01/04/2009 @ 11:48pm

100. Posted by HAPPYLonghorn at 01/04/2009 @ 11:45pm

     Won't be long.

     HAPPY will then explain why "Obama's cuts to SMALL business and NONE for the top 2% are insufficient and won't work."

     Posted by Mask at 01/05/2009 @ 07:28am

101. <i>Posted by srjenkins at 01/04/2009 @ 11:28pm; Posted by urmygyro at 01/04/2009 @ 11:29pm; Posted by urmygyro at 01/04/2009 @ 11:32pm </i>

     I apologize for the brevity I'll need here, but I have to run fairly soon. At the very least, though, I want to sketch out why I think my position still makes the most sense.

     The discussion seems to be happening on two levels. (1) Should "textualism" be the standard for a judge interpreting the Constitution, and (2) Is textualism what judges use in the status quo?

     The one I'm most interested in is (1), and I don't think there's been a whole lot of response to this. While I agree that it's good to have an actor interpret the laws who does not make or execute them, that says nothing about what interpretive framework the actor should use. Moreover, judicial review is fully consistent with my position because part of the judge's job is to weigh (for example) state law v. federal law when laws conflict. Since the Constitution is the law of the land, it necessarily trumps any other law.

     My position is based on two arguments. First, the Constitution was constructed with the intention of providing a government of limited and enumerated powers. The only way that works is if the boundaries of those powers are at least fairly clear and consistent. Second, justices have no legitimate democratic justification for effectively amending the Constitution on their own. Once put into office, they are for all intents and purposes accountable to no one. They are in for life, and removing them from the bench is virtually impossible. Though the Constitution does have means by which to limit the power of majorities, no one EVER thought it do so by effectively handing nine men the power to impose their own values on the population.

     Posted by Thrawn at 01/05/2009 @ 6:18pm

102. Thrawn wrote: " judicial review is fully consistent with my position because part of the judge's job is to weigh (for example) state law v. federal law when laws conflict. Since the Constitution is the law of the land, it necessarily trumps any other law."

     yes - there is clear text - the supremacy clause - that states the u.c. constitution, federally made laws and treaties are higher law than state law (and thus if they conflict the federal law trumps).

     if that's an issue it's a slam dunk part of a case.

     Posted by urmygyro at 01/05/2009 @ 7:53pm

103. Thrawn wrote: "First, the Constitution was constructed with the intention of providing a government of limited and enumerated powers."

     You are correct. Again - another true, but safe, statement.

     Thrawn wrote: "The only way that works is if the boundaries of those powers are at least fairly clear and consistent."

     Well - there's the rub, no? What are the boundaries? That's the whole debate! It doesn't strengthen your argument by simply restating what's being debated!

     Thrawn wrote: "Second, justices have no legitimate democratic justification for effectively amending the Constitution on their own."

     First - I take exception with your characterization as judges "amending the constitution." They are expounding on the constitution when cases come before them (of course - people only think the constitution is being "amended" if they disagree with the result). Many of the clauses in the constitution are not written perfectly clearly. Whatever form of constitutional interpretation one believes in - textualism, originalism, strict constructionism, doctrinialist, developmentalist, contextualist, a combination of some - the fact is all judges are still interpreting - and their own beliefs and politics and prejudices and ideas get mixed in. You can't take the human element out for any approach - which is what you seem to be arguing - you seem to think one approach is best because it eliminates (as best as can be eliminated) personal bias. I disagree that that can exist. There are no unbiased observers (and certainly no unbiased participants).

     continued...

     Posted by urmygyro at 01/05/2009 @ 8:07pm

104. That said, I think there is a strong argument to be made that the people are still democratically involved with the selection of judges (even if you claim they are amending the constitution) because the president, an elected official, has to nominate a person for the bench who congress, a group of elected officials, then must approve if that person is to take a seat on the bench.

     Judges cannot simply force themselves onto the supreme court. If a judge retires he can't say "I'm placing so-and-so on the bench in my place." It's the president and congress who get to decide.

     Here's another thing - if the case holdings bother the people so much - they can go to their congresspeople and complain - rally them - get them to overturn it (which congress most certainly can - the 11th amendment - which overturned a supreme court case - was proposed as a bill two days after the case was decided). If the people truly wanted to put the supreme court on notice that we think it's overstepping its bounds - we have a voice. We have representatives in another federal branch who can wield their mighty power.

     If your argument is going to be that it's too difficult to get congress to act - then you should be focused on them - they have the power of the purse - a much more dangerous power than simply the power to decide cases.

     continued...

     Posted by urmygyro at 01/05/2009 @ 8:13pm

105. Thrawn wrote: "Once put into office, they are for all intents and purposes accountable to no one. They are in for life, and removing them from the bench is virtually impossible."

     The text of the constitution gives means to displace judges! If a judge is acting improperly on the bench - impeach him. Congress doesn't hesitate to impeach presidents - complain to your congress people that certain judges should be impeached - and tell them why.

     by the way - i wouldn't mind seeing your list - which judges deserve to be ousted, according to you?

     Thrawn wrote: "Though the Constitution does have means by which to limit the power of majorities, no one EVER thought it do so by effectively handing nine men the power to impose their own values on the population."

     Curious - would you be saying this if there were 9 scalias on the bench? and do you really think his biases and prejudices and politics and beliefs and everything that makes him human is simply hung up with his coat before he puts his robe on?

     But to address your point more specifically - so you've read all the possible notes and briefs and documents about the constitutional convention and you know for sure what was said about judicial review and the dangers of the judicial branch?

     please articulate the arguments laid out and stances taken at the convention - since original intent is your bag.

     thanks, baby

     Posted by urmygyro at 01/05/2009 @ 8:23pm

106. For the purposes of discussion, I'll just group the 3 preceding posts into one discussion. This might spill over into a second post, we'll see. To start out with, though, I really enjoy this kind of discussion even though I think my philosophy clashes with yours.

     The first argument I made dealt with limited government/enumerated powers. What's critical here is that this requires some consistent standard. No standard based on "fundamental freedoms" can provide this because it ultimately relies on a judge's own moral preferences, which will necessarily shift drastically between judges. That's bad because you lose consistency. Additionally, remember that "the government" whose powers are supposed to be enumerated...includes the judicial branch! That means we also need a clear framework delineating what the Court is and isn't justified in striking down. I don't think I've seen one that doesn't rely on either original intent/understanding or the strict meaning of the text.

     The second argument deals with amending the Constitution. It looks like we both agree that judges should not be able to amend the Constitution on their own; our disagreement is whether non-originalist judging does that.

     Let's say the Constitution was adopted with the understanding that "X amendment means Congress can't do A without B." If the Court comes along later and says "actually, this means Congress can't do A at all", that's an amendment. The standard for an amendment, and I think this is crucial, isn't simply "a change in interpretation." It's a change relative to a fixed meaning; the notion of amendment makes sense only if you think that there is an original meaning that you are altering.

     continued

     Posted by Thrawn at 01/05/2009 @ 9:26pm

107. Therefore, if the Constitution was originally understood to say one thing, and the Court rules that it says something mutually exclusive with that original understanding, they've effectively amended the Constitution without going through the legitimate process by which amendments are supposed to take place.

     I recognize that judges are ultimately still human beings; they will bring their biases in to an extent, no matter how much they try to filter them out. I'm saying, though, that this isn't an excuse to let bias run the day, regardless of whether it's 9 Ginsburgs or 9 Scalias.

     I think the "democratic theory" argument was kind of a separate point, so I'll deal with it here. You claim that judges can be held accountable by virtue of impaechment. Given that only one judge has ever been successfully impeached, even though many others have been demonstrably deserving of it (not because I disagree with them, but because they literally went crazy, etc.), I don't think this is a meaningful check. Nor is the ability to amend the Constitution, given the extraordinary difficulty involved. A check which is virtually impossible to put into practice isn't really a check at all, and this means that judges are effectively unaccountable once put on the bench. As such, I don't see how democratic theory can justify them striking down laws made by elected bodies if their justifications are ultimately rooted in their own moral preferences (which you seem to defend). Again, I recognize that bias exists, but I don't see why we should make the perfect the enemy of the good here.

     So...it looks like I'll be spilling over onto a third page because I need to hit the "constitutional convention" point.

     continued

     Posted by Thrawn at 01/05/2009 @ 9:33pm

108. I haven't read a massive amount about the Constitutional conventions, but I still think my argument stands on pretty firm ground:

     1) In the Federalist Papers, the judiciary is repeatedly referred to as the "least dangerous branch" to ordered liberty. Note that this doesn't just mean individual liberty; it means also the right of self-government (i.e. legislatures).

     2) No state, and certainly no Southern state would ever have ratified the Constitution had they understood it this way. The South in particular was strongly interested in states' rights, and a number of the delegates to the convention wanted to make sure that their autonomous state governments wouldn't be browbeaten by the federal government. They would never have endorsed a system in which the judiciary had functionally unlimited power to do so.

     The bottom line is this. If the Constitution is law, a provision of it should be understood like most statutes are: in terms of what it meant when passed. Anything else seems to undermine the whole purpose of a Constitution that delineates the powers of government, and undercut the judiciary's justification for overturning acts of elected bodies. Unless judicial review is rooted in something other than the moral preferences of individual judges, I do not see how it can be justified in a society that values democratic representation.

     Posted by Thrawn at 01/05/2009 @ 9:40pm

109. I'm about to go home - (no internet there) - but i appreciate conversing with you too - and will pick this up tomorrow. hope to see you then.

     Posted by urmygyro at 01/05/2009 @ 9:43pm

110. Re Clinton and Bosnia, etc. In going to Bosnia wasn't it a NATO operation acting in pursuit of the aims reached in the Dayton Accords in 1995, i.e., a whole different kettle of fish, it sounds, than the way we got into the present Iraq debacle. I don't think this is comparable at all.

     Posted by schnellerheinz at 01/05/2009 @ 10:38pm

111. In fact, we didn't go to war at all in Bosnia, as I remember. Matter of fact, Clinton took us there only once peace had been declared. We were in essence just a peacekeeping force there. An EU thing nowadays, I think. Interesting as well to see commentary of John Locke on the U.S. Constitution. Locke of course being a "tabula rasa", sense- perception type of guy predispositionally opposed to the American System and its recognition of man's innate specialness. Locke in fact fits right in with that species of British-style free trade we were intentionally trying to get the hell away from, e.g., "we'll loot your natural resources and send back the value-added stuff at OUR price--that's the British free trade system at its best, and, really, "free trade" as such is a term of art which quite specifically refers to this pernicious colonial practice. For more on this, see the Irish Potato Famine, the starvation of a country which had PLENTY of food, all in the interest of preserving "free trade."

     Posted by schnellerheinz at 01/05/2009 @ 11:12pm

112. Posted by Thrawn at 01/05/2009 @ 6:18pm

     "The discussion seems to be happening on two levels. (1) Should "textualism" be the standard for a judge interpreting the Constitution, and (2) Is textualism what judges use in the status quo?"

     A relatively brief couple of comments.

     I'm skipping on this discussion primarily because I think the obvious answer to (2) is no. So, (1) is basically an exercise in, "How would we like the world to be?" In the context of law, perhaps the first question is why is speculation of this sort useful? I don't think it is useful.

     But even if we focus on (1), as you'd like, I think you are off base because you are making the blind application of law into some kind of algorithm, that elevates mindless application of meaning over justice and righteousness.

     You also seem to be making an argument about the importance of clearly spelled out powers, but ignore the fact that judicial review is not in the Constitution at all. If we take the textualism approach, we have to assume that judges do not have that power at all.

     Which is also interesting because you seem to be making an efficacy argument that doing anything other than what is spelled out under the Constitution undermines its legitimacy, completely ignoring that judicial review has been in practice from near the beginning and arguably makes the functioning of government better.

     I think judges should be using their judgment about the best way to apply justice in the cases before them. It is why the founders insisted on a jury system - to make sure that justice overruled the dumb application of it that results in the miscarriage of justice.

     But, this discussion of law doesn't talk about justice - which misses the whole point.

     Posted by srjenkins at 01/05/2009 @ 11:43pm

113. <i>Posted by srjenkins at 01/05/2009 @ 11:43pm </i>

     Why is (2) obvious? Many judges DO try to apply the Constitution as originally understood. Though Scalia is far from perfect, I think his flag-burning ruling is a very nice example of this. Your conclusion is far from obvious here.

     I don't understand, though, why you think this process would be mindless. It may be difficult to determine what the original understanding was, but as many say, that's why we have judges.

     As for the justification for judicial review...this is why I made the argument that urmygyro had no problem (fairly) with conceding. Judicial review follows from the clear "judicial power" of courts to deal with situations where there is clashing law (federal v. state, etc.) This is a necessary aspect of making legal rulings.

     Finally...I've argued multiple times that Constitutional jurisprudence that lacks a clear standard is deeply problematic. Forgive me, but you seem to fall right into this category. Your standard seems to leave functionally unaccountable justices free to apply their own, differing conceptions of justice and impose them on a populace that disagrees. I don't see how you can justify this within democratic theory.

     Posted by Thrawn at 01/06/2009 @ 02:26am

114. Posted by Thrawn at 01/06/2009 @ 02:26am

     "Many judges DO try to apply the Constitution as originally understood."

     Let's take an example like Plessy:

     http://www.landmarkcases.org/ plessy/const_interp.html

     Do you want to argue that the majority opinion is based on textualism?

     Now, let's go through all the important cases outlined in that site. I'd argue that most are not textualism.

     Also, there is confusion on how you are using the term, "textualism". If you are using Scalia as your model, Scalia believes in textualism for statuatory interpretation and originalism for Constitutional interpretation.

     Want to go through those landmark cases and see how many used originalism? And do you want to talk about how these rulings - which in my judgment would include Dred Scott, Plessy, etc. - were overturned because based on modern notions that they were wrong?

     "I don't understand, though, why you think this process would be mindless."

     The application of law means using different interpretive models from historic meaning, common sense meaning based on what the words mean today, whether it is implied from the structure of the Constitution (i.e., your judicial review arguement), precedent, moral considerations and its utility. Any time you turn to one, and only one, and say that's the right way to interpret - you aren't doing your job as a judge.

     "I've argued multiple times that Constitutional jurisprudence that lacks a clear standard is deeply problematic."

     It's deeply problematic to pretend that your ideal describes how the world works. It doesn't - and thank God for that.

     "I don't see how you can justify this within democratic theory."

     We are a republic, not a democracy.

     Posted by srjenkins at 01/06/2009 @ 08:58am

115. <i>Posted by srjenkins at 01/06/2009 @ 08:58am </i>

     I'll leave (1) alone for now because I don't think it justified ignoring whether our system of justice is doing what it should.

     So to (2)...I'm basically defending the kind of "original understanding" framework that both Scalia and (to some extent) Bork defend. It's not about the secret intent of the framers, but about how provisions would have been originally understood upon enactment. This is the standard we use for virtually all other statutes, so why we wouldn't use it for a document that above all else is SUPPOSED to create clear definitions of powers eludes me.

     Why is a plurality of interpretive frameworks automatically good? I've argued that a judge has no business deciding on their own moral considerations (which utility basically collapses into), and I think the most telling part of your last post was the paucity of response to the democratic theory argument. The entire base of our government's legitimacy is the right of the people to govern themselves. That means that they, through legislatures and executives who are accountable to them, have the right to balance moral considerations as they see fit. The fact that we're a republic does not change the fact that this basic democratic premise is the rock on which our government's legitimacy is based.

     So...for your position to work, you have to prove two things:

     1) Judges have superior moral faculties that legislatures and others lack, AND

     2) They have the right in a democratic (OR republican) society to impose their moral convictions on a society that disagrees.

     Both seem clearly false, which is why I don't see any real alternative to some form of originalism. Plus, you never answer the "stability of law" point, which I think is also key.

     Posted by Thrawn at 01/06/2009 @ 11:58am

116. Posted by Thrawn at 01/06/2009 @ 11:58am

     "This is the standard we use for virtually all other statutes..."

     As I noted above, criminal case law - until fairly recently was the province of common law. Even now, statutes assume case law and don't bother with definitions and so forth. So, this statement is simply false.

     "Why is a plurality of interpretive frameworks automatically good?"

     Because to judge implies judgment. In your system, either a judge is just mindlessly applying the statute to a case or he is already doing what I say he is - using his judgment about how to apply it that has very little basis in legislative intent. I'll also mention, as an aside - that determining legislative intent is just another way of saying guesswork.

     Your framework doesn't describe reality. Period.

     "The entire base of our government's legitimacy is the right of the people to govern themselves."

     A republic is not a democracy. No matter how people try to pretend that we live in a democracy, we don't. I've never once voted for or against a federal law - nor has anyone that wasn't a Senator or Representative. We can only chose representatives to do so on our behalf. That's a republic. Our republic is based on classical liberal principles "no taxation without representation", not democratic principles.

     "So...for your position to work..."

     My position "works" because it describes the real world, not some made up B.S. that Scalia, Bork or anyone else wants to pretend guides their decisions. The law is what they say it is. You don't have to like it. You may argue that it is inconsistent, illogical, undemocratic, whatever. Yes! Yes! Yes! Yes! Guilty as charged. But, that is the way it is. You think is "should be different". It isn't nor will it be.

     Posted by srjenkins at 01/06/2009 @ 12:51pm

117. Posted by Thrawn at 01/06/2009 @ 11:58am

     Plus, you never answer the "stability of law" point, which I think is also key.

     From Wikipedia stare decisis:

     "For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases.[6] The U.S. Supreme Court has further explained as follows:

     [W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. Smith v. Allwright, 321 U.S. 649, 665 (1944)."

     In other words, the Constitution is what the Supreme Court and the lower courts say it is - irrespective of legislative intent.

     Again, this is the way the world actually works. You don't have to like it. You may find it illegitimate, illogical or whatever - but there it is.

     Posted by srjenkins at 01/06/2009 @ 12:56pm

118. <i>Posted by srjenkins at 01/06/2009 @ 12:51pm </i>

     Your analysis on common-law criminal stuff doesn't quite seem responsive. If you read a number of criminal law case opinions, you will find that judges often grapple with doctrines that they hate, but still apply them because they are the law. Believe it or not, many judges do the best they can to determine what the law is while setting aside their own personal thoughts on what the law should be. Contrary to your claims here, the empirical reality is NOT clearly in your favor, not by any means. Since you hinge the overwhelming majority of your post on this one empirical claim, a lot of it then goes away.

     The only other issue that really gets a response is the democratic theory argument. As I've said, I understand that our scheme of government is one of representative democracy. That's the point. The people, through representatives who are actually accountable to them, have the right to govern themselves and balance moral considerations as they see fit. Your framework, if actually applied across the board, would be functionally indistinguishable from a multiplicity of what Plato referred to as "philosopher-kings." Our system isn't that way because judges often don't employ the framework you defend, and as I've argued, I see no reason why they would be justified in doing so.

     Finally...I just don't get the judgment argument. Does it mean that a person who holds to a strictly deontological moral framework isn't making judgments when deciding what's right and wrong? You don't need a plurality of frameworks to exercise judgment; the very point by opponents that originalism can be difficult illlustrates that point for me very nicely.

     Posted by Thrawn at 01/06/2009 @ 1:06pm

119. Let me illustrate my argument another way. If I'm going to be bound by the law, it has to be at least possible for me to know with confidence what it is. I just don't understand how you give me any basis for doing that. From your framework, the standard is "what does X judge believe is morally correct?" From your perspective of legal realism, I don't see how you can defend any other standard. That's no way to provide coherence or consistency to law, and you've still provided no basis as to why the judge's moral sentiments should trump those of elected and accountable representatives.

     Posted by Thrawn at 01/06/2009 @ 1:09pm

120. Posted by Thrawn at 01/06/2009 @ 1:06pm

     "If you read a number of criminal law case opinions, you will find that judges often grapple with doctrines that they hate, but still apply them because they are the law."

     The problem with your argumentation - up and down on this topic - is you make claims about how judges go about making decisions and ultimately, that the law is something concrete.

     You like to talk about Scalia and flag-burning. Why not talk about Scalia and abortion, privacy or the "death penalty"? Because to do so would show that perhaps textualism is a convenient cover for Scalia to promote his own - even the flag vote, in a cynical view - could simply be a way of effectively hiding his biases.

     I could argue, and have, that several of the Bill of Rights are privacy rights. I don't think abortion can be plausibly covered by any notion of founder's intent. Or what about Furman v. Georgia when executions were stopped for several years? Or Coker v. Georgia, where it was limited to murder?

     The bottom line is that when it gets more complicated, it comes down to judgment not simply application of "law" as a concrete unchagable idea.

     "Since you hinge the overwhelming majority of your post on this one empirical claim, a lot of it then goes away."

     Hardly. We have a common law system, so the precedents of the interpretation of that law have to be factored in just as legislative intent is factored in, considerations of utility, and so forth and so on. But in the end, it is the judge that makes the call and as long as their reasoning is coherent, their judgment is the law.

     Posted by srjenkins at 01/06/2009 @ 1:38pm

121. Posted by Thrawn at 01/06/2009 @ 1:06pm

     In sum, the difference between you and I is that you want it all to make sense. I'm simply pointing to the way it actually is. I'm not claiming that it "ought" to be this way.

     As such, I don't have to explain away the inconsistencies, such as why the Supreme Court reversed itself 130 times in less than 50 years. It is simply the reality.

     Have you ever been to a court room? The only thing democratic about the whole thing is the jury and the fact that I can vote no on retaining some judges on election day. They might as well be philosopher kings - but the fact that things are that way and providing a justification for it is not my problem. It is simply the way it is.

     Posted by srjenkins at 01/06/2009 @ 1:49pm

122. I want to say first today I think srjenkins is representing reality much more than you thrawn. I have a familiarity with the workings of the judicial system (which he seems to as well) and I can reinforce what he says, and the most important point - regardless of constitutional interpretive philosophy - they are humans, making decisions. It is not a mathematical formula for any of them - scalia included. scalia does not know the original intent of the founders any more than you or I. Judges are not paid to be constitutional scholars and historians. They are paid to make judgments about parties who have used the judicial system to solve their differences. That's it.

     You seem to think if every judge was an originalist they would come to the same conclusion in every case. Every case would be 9-0 because there'd only be one way to see the case. Don't you think even two judges, side-by-side, can judge a case using an originalist thinking - and still come to different results? Of course they could. There are plenty of cases where conservative judges who claim to all be concerned with original intent do not come out on the same side of a case, or where one or more agrees but feels compelled to write a separate concurring opinion spelling out what he'd like the majority opinion to say if he could only get 4 other people to agree with him.

     Posted by urmygyro at 01/06/2009 @ 3:32pm

123. Thrawn wrote: "remember that "the government" whose powers are supposed to be enumerated...includes the judicial branch! That means we also need a clear framework delineating what the Court is and isn't justified in striking down. I don't think I've seen one that doesn't rely on either original intent/understanding or the strict meaning of the text."

     By this very admission of yours - that the judicial branch is part of a government whose powers are limited because they are enumerated in a document called a constitution- then how does Justice Scalia feel comfortable even making constitutional rulings? (meaning - holding that a congressional or executive act comports with the constitution, or doesn't - and should be overturned)

     Article III does not give the supreme court the enumerated right to review acts of the other two branches. If Scalia is concerned with original intent - what kind of mental gymnastics must he have done when he became a judge to convince himself that he has the power of judicial review when the very document he is concerned with doesn't expressly give him that right?

     Don't you think the founders would have simply added the power of judicial review into Article III if they intended for the supreme court to have it?

     If you say 'no' - they wouldn't necessarily have done that - then it's on you to prove that they still meant for judges to have that power. And how will you prove this? By reading the federalist papers or notes taken contemporaneously with the drafting of the constitution by people who were there, etc. And what happens when some of those documents conflict? How do you choose one as more important that another? James Madison may be "the father of the constitution" - but he did not pass the constitution by himself....

     Posted by urmygyro at 01/06/2009 @ 3:41pm

124. ...other people were there, who had votes, and opinions of their own, and debated--and then states had to vote on them.

     Whose notes matter most?

     This is what Scalia does as an 'originalist.' He chooses the sources he thinks matter most. Don't you see where personal opinions, biases, prejudices, beliefs, politics, etc - come into play for a judge who uses an originalist method just as much as someone who doesn't - who you decry as simply using their personal opinion?

     It's all personal opinion - no matter what method. Scalia simply uses originalism to give his judicial opinions an air of superiority over people who don't. He's claiming he knows original intent. How can he? It's not as simple as looking at a piece of paper. The founders didn't say in some document somewhere - this is what we meant by "to keep and bear arms" to help further explain the brief language of the 2nd amendment.

     Do you realize in the d.c. gun case that was decided last year by the supreme court that scalia was dicussing scottish and english history? yeah - scalia, an originalist - was discussing european history to buttress his judgment. Hmm...where does the going back in history stop? Why is Scalia the expert on knowing that the founders were looking at scottish and english history when drafting the 2nd amendment? He doesn't know that they were doing this - he's taking bits of history here and bits of history there and congealing them to form a story that if you accept it as true - justifies his holding in a case. That's his bag, that's what he does.

     Posted by urmygyro at 01/06/2009 @ 3:52pm

125. Thrawn, read this article about District of Columbia v. Heller (the gun case I mentioned above):

     http://www.weeklystandard.com/Content/Public/

     Articles/000\000\015\884upgmf.asp

     you'll have to cut-and-paste the two lines together to get to the article. I apologize, I don't know how to make it a link.

     Two respected conservative judges, both appointed by Ronald Reagan, blasted Scalia's judicial philosophy (one went so far to say Heller was as poorly decided as Roe v. Wade - surely a serious accusation by any politically conservative person - never mind a conservative judge.)

     One called the majority opinion (written by Scalia): "an exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation [than] any other."

     Another argued that a truly "originalist" analysis--unlike Scalia's "pretense of engaging in originalism interpretation" to achieve political ends--would have led the Court to affirm the D.C. handgun ban, not invalidate it.

     I think this only enhances what I've been arguing and also buttresses srjenkins' points. The law is what judges say it is. One judicial philosophy is no better than another - simply different. Judges, and experts, and laymen, of course - will always argue one is better than another (of course, see if they aren't simply being opportunists who like the results of a certain judge).

     As a country, long before any of us came around, it has been this way. There is no perfect judicial philosophy. Conservatives and liberals will fight it out for seats in congress, for the presidency, and for the bench, as long as this country exists. Scalia's judicial philosophy is just another cog in the battle - not some divine way of seeing the truth.

     Posted by urmygyro at 01/06/2009 @ 4:22pm

126. There's a huge amount to cover here, and I'll try to cover it in three parts (one post each): the status quo, whether an anti-originalist status quo is enough for the political philosophy question not to matter, and then finally the political philosophy question itself.

     First, the empirical question. Contrary to both of you, I just don't think that the status quo clearly favors your position. I think there's a broad continuum; some judges don't care about original understanding, some try vigorously to exclude their own moral views from opinions (with Justice Holmes being a famous, though no longer alive, example). There's an ongoing disagreement on this between judges, just like there is between academics and people like us. With that in mind, I just don't see how you can claim that the status quo is firmly aligned against the position I'm defending.

     I want to hit, briefly, two sub-arguments that Jenkins made. First, he said that a lot of status-quo decisions can't be accounted for by original understanding. For some, that may be true, which I think would make them bad decisions. Second, our Constitutional jurisprudence ISN'T supposed to be common-law. Under that scheme, precedent could outweigh the Constitution itself. I would think this would be problematic to you because it would allow judges to eviscerate the Bill of Rights just as easily as they could expand it. When there's no fixed standard, you have no guarantees against government, and that's why the Bill of Rights was crafted in the first place.

     The only thing left here, I think, is the claim that human beings can't be originalist. Again, why make the perfect the enemy of the good? Judges have tried and many have done a pretty good job of it.

     Posted by Thrawn at 01/06/2009 @ 4:52pm

127. This middle post should hopefully be the shortest. Here, I'll just hit why I think the "ought" question is relevant.

     Quite frankly, it seems fairly intuitive to me. When you say "I won't even look at whether 'morality judging' is justified because, hey, that's the way it currently is,' you're effectively destroying political philosophy. A primary purpose of political philosophy is to look at the systems that exist and call them into question. If we have a set of institutions that we can't provide any good justification for...that's a problem!

     In fact, I think there's a basic inconsistency between this mentality and participation in politics at all. Participating in politics inherently means questioning the rules and institutions that exist in the status quo and asking "should it be this way? is there a better way?"

     Moreover, the fact that people disagree about answers does not invalidate the claim that there is a true answer. People still disagree about a lot of things, even in science. Does that mean there isn't a true answer? No. Similarly, the fact that people disagree about judging paradigms (or even how to apply a specific paradigm) doesn't mean that one paradigm isn't more legitimate/more consistent with a scheme of self-government than another. This equally means that the failure of any judge to perfectly embody originalism does NOT mean that judges shouldn't strive to do so to the greatest extent they can.

     Posted by Thrawn at 01/06/2009 @ 5:00pm

128. So now...the meat that I care about (and this will have to be two posts.

     Before hitting the core, I want to deal briefly with the claim that original understanding just can't be discerned. I've never said it's easy; that's why we have judges. That doesn't make it impossible; not only do many law classes take time to explain the history leading up to a particular legal doctrine (or clause of the Constitution), but historical material on discussions leading up to the Constitution is fairly widely-available.

     Even if many other things aren't completely clear, one thing that IS clear is this...no one at the Constitutional Convention, or in the legislatures that ratified it, or in the states that ratified subsequent amendments, EVER thought that what they wrote or approved gave the Supreme Court an effectively unlimited license to strike down state laws of which they morally disapproved. Among other ways that we know this:

     1) No state would EVER have ratified it

     2) No one ever even suggested it

     3) The judiciary was repeatedly called the "least dangerous branch"

     4) Judicial review was even debated

     5) The South

     6) Everyone understood the branches of government (including the JUDICIARY) to be limited in their power, so clearly they would never have contemplated unlimited license for any branch.

     The "how can Scalia feel comfortable having judicial review?" question has already been answered twice now. When laws clash, the judiciary has to weigh between them in order to decide a case. This is basic to its functioning as a court, and was understood as part of the "judicial power" granted by the Constitution.

     Posted by Thrawn at 01/06/2009 @ 5:09pm

129. I'm defending two propositions:

     1) Looking to the original understanding of a particular part of the Constitution is the standard for legitimacy.

     2) Looking to one's own moral preferences to strike down a law is a bad standard for legitimacy.

     I don't understand why historical inquiry is a problem. The historical development of a text influences how it would have been originally understood. Can there be disagreement on the outcome? Of course. Why that's a theoretical problem I don't know.

     Here's the real kicker, though...if you believe that the judiciary is to have limited powers like all other branches, you have to either explain how giving them functionally unlimited powers (since whatever a judge morally feels can be legitimate law) is justified, or how this somehow isn't unlimited. They may have to hear a case first, but once they do, there is no limit to how much they can intrude on other branches and no meaningful way to hold them accountable when they do.

     Early on, I set out a two-prong burden that NO ONE has responded to. I said that in order to justify a judge imposing his/her moral preferences on a populace that disagrees, they must:

     1) have superior moral faculties that we lack, and

     2) have a justification for imposing their preferences over those of democratically-elected majorities.

     Neither of you has shown either of these. Given that, I don't see why your standard is preferable to that which we use for all other statutes. Common-law can be relevant for criminal statutes because it explains how they were understood when enacted. Outside of that, the common-law has no relevance to a criminal statute, and certainly a judge's own moral preference shouldn't.

     Outside of this, I know of no legitimate justification for judicial review.

     Posted by Thrawn at 01/06/2009 @ 5:17pm

130. Thrawn wrote: "our Constitutional jurisprudence ISN'T supposed to be common-law."

     common law is simply a body of precedent. who creates the precedent? judges. there could be no constitutional 'common law' before the constitution was enacted. after it was adopted and became the highest law of the united states, and it created a supreme court of the land, judges on that supreme court would create a body of precedent in the supreme court. most supreme court cases deal with constitutional issues. this is precisely what "stare decises" is suppose to deal with--the passage of time, and new judges. you know how often scalia and his peers overturn their own precedent? just as, if not more, often than they overturn executive and legislative acts. he didn't follow his OWN precedent in the heller case.

     Thrawn wrote: "Under that scheme, precedent could outweigh the Constitution itself. I would think this would be problematic to you because it would allow judges to eviscerate the Bill of Rights just as easily as they could expand it."

     As I just pointed out above - Scalia, the one whose 'originalism' you praise - is capable and has been hypocritical with his own judicial philosophy. If your concern is about the good of the system, and not just defending scalia and a certain judicial philosophy - you should admit that he and it is just as flawed. If you are determined to prove that they are above they fray - then we have nothing to debate, because that will simply show you're "judging" with your own biases and politics and beliefs in mind!

     ;)

     Posted by urmygyro at 01/06/2009 @ 5:19pm

131. Thrawn wrote: Moreover, the fact that people disagree about answers does not invalidate the claim that there is a true answer. People still disagree about a lot of things, even in science. Does that mean there isn't a true answer? No. Similarly, the fact that people disagree about judging paradigms (or even how to apply a specific paradigm) doesn't mean that one paradigm isn't more legitimate/more consistent with a scheme of self-government than another. This equally means that the failure of any judge to perfectly embody originalism does NOT mean that judges shouldn't strive to do so to the greatest extent they can."

     You're simply choosing a philosophy you like and claiming everyone should follow it. Like I said before, even people who follow originalist ideas aren't consistent with each other. You're not guaranteeing a consistency by simply saying "interpret the constitution with an originalist philosophy." What historical sources are accurate? Which are more important than others? Where' the almighty consistency going to come from that you adore?

     Posted by urmygyro at 01/06/2009 @ 5:23pm

132. Thrawn wrote: "Even if many other things aren't completely clear, one thing that IS clear is this...no one at the Constitutional Convention, or in the legislatures that ratified it, or in the states that ratified subsequent amendments, EVER thought that what they wrote or approved gave the Supreme Court an effectively unlimited license to strike down state laws of which they morally disapproved."

     How do you know originalists, like Scalia, aren't simply selectively choosing history to create a narrative w/in a specific case to cover their own biases and beliefs of how the case should come out? How do you know someone who went to Harvard and has extensive legal education isn't skilled in being able to make his personal opinion seem legitimate by pointing to old sources?

     Posted by urmygyro at 01/06/2009 @ 5:26pm

133. Again, Thrawn - you mention that judicial review was debated by the founders - if it's not enumerated in the constitution as a power that judges have then how can scalia and you believe judges have that enormous right which troubles you so now?

     Posted by urmygyro at 01/06/2009 @ 5:28pm

134. Thrawn wrote: "The "how can Scalia feel comfortable having judicial review?" question has already been answered twice now. When laws clash, the judiciary has to weigh between them in order to decide a case. This is basic to its functioning as a court, and was understood as part of the "judicial power" granted by the Constitution."

     You're conflating two ideas. The constitution clearly states, in the supremacy clause, that if a state law is in conflict with a federal law or the u.s. constitution - the state law loses. This is elementary. I said this before - but you mistakenly took this as admission of a different point. "Supremacy" in supremacy clause means the federal gov't and u.s. constitution are higher laws than state laws - even though states are sovereigns themselves. (we fought a civil war partly over this idea).

     You confused the above idea with the following - the constitution does not enumerate the power in the judiciary to review the acts of it's co-equal (not supreme to) branches - congress and the executive. The supreme court has won this right over time. Marbury v. Madison, very famous constitutional case - decided by John Marshall, was about this very idea. You should read it (or a summary of it) sometime. Brilliant work by Marshall. The supreme court then was definitely not the powerful body it is now. Thomas Jefferson, and the anti-federalists, if Marshall had ordered them to deliver some justice of the peace commissions, would have ignored the ruling, in an attempt to show how powerless the court was. Marshall dodged the confrontation, again, brilliantly. I'll let you read it.

     continued...

     Posted by urmygyro at 01/06/2009 @ 5:35pm

135. ...This is important, I'm not sure if you're aware of this idea in law - it's called "justiciability."

     It involves such concepts as ripeness, mootness, standing, and political questions - and further involves broader concepts such as jurisdiction and federalism.

     The basic idea of justiciability is that a court shouldn't rule on something unless it's proper for it to do so - because we want what courts say to have legal effect.

     Thomas Jefferson and the anti-federalists famously claimed that Marbury v. Madison was nothing more than dicta because Marshall held a law (actually, only part of an act) passed by congress was unconstitutional, the president had to deliver the commission - but then said - this court (the supreme court) doesn't have the jurisdiction to hear the case - and dismissed the case (by modern standards, and probably even standards of that time - that would be improper - if you don't have jurisidction, you don't rule on the merits of the case at all).

     You should look into the "political question" doctrine. This is something the supreme court could certainly avail itself of (scalia included) if cases involve politics (which seems to be another problem of yours - that they aren't elected, and thus should not be involved in politics).

     Bush v. Gore is a famous case that certainly involved political questions. The supreme court did not avail itself of the political question doctrine to pass on the case (or federalism). It jumped in, ruled 5-4, down political lines, for Bush - and the majority, also famously (or infamously) stated the case doesn't have precedential value for any future cases.

     I wonder if the founders believed cases in the supreme court should be one-and-done with no legal effect on anything or anyone but the litigants?

     doubtful

     Posted by urmygyro at 01/06/2009 @ 5:43pm

136. Thrawn wrote: "Here's the real kicker, though...if you believe that the judiciary is to have limited powers like all other branches, you have to either explain how giving them functionally unlimited powers (since whatever a judge morally feels can be legitimate law) is justified, or how this somehow isn't unlimited."

     How is their power unlimited? Does the supreme court have money or an army to enforce its decisions? Supreme Court holdings have been ignored by many presidents. Look back to Andrew Jackson. Look all the way to W. You give waaaaaaaay to much credence to the danger of the supreme court. The other two branches are what you should fear.

     And here's the thing - if the supreme court makes a ruling - get it overturned. Congress can do that. And Congress is accountable to us. Checks and balances my friend.

     Thrawn wrote: "They may have to hear a case first, but once they do, there is no limit to how much they can intrude on other branches and no meaningful way to hold them accountable when they do."

     See above.

     Posted by urmygyro at 01/06/2009 @ 5:48pm

137. Thrawn wrote: "Early on, I set out a two-prong burden that NO ONE has responded to. I said that in order to justify a judge imposing his/her moral preferences on a populace that disagrees, they must: 1) have superior moral faculties that we lack, and 2) have a justification for imposing their preferences over those of democratically-elected majorities."

     I responded before you wrote that, and subsequently (before this post). But I'll go at it again.

     Judges don't have moral faculties that we don't. They're not platonic guardians. But there are plenty of checks on them. They can be impeached. Congress can overturn their rulings in a case. People can simply ignore them (presidents have ignored the supreme court, regular people ignore the supreme court - I took a class on religion and the constitution - towns put up creches when told not to, superintendents allow religious speakers at graduation ceremonies when told not to, principals allow teachers to organize prayer when told not to, etc). Judges also don't live forever. And a beautiful part of the democratic process is they can't replace themselves. A president has to nominate them (and he had to win election) and congress (full of people who had to win elections) have to approve them.

     What I want you to do is - prove that scalia is not merely using the idea of "original intent" to mask his preferences over democratically-elected majorities.

     Posted by urmygyro at 01/06/2009 @ 5:55pm

138. Thrawn - all judges incorporate their own moral preferences into their holdings. They are human, it is impossible not to do so. We are no robots - your precious scalia might be though!

     ;)

     You seem to want something that is impossible to get. You want a system that forces all judges to think the same. You won't get that. It's impossible to make people the same.

     If you have a problem with judicial review itself - then why do you keep defending scalia? he's part of the problem too then.

     Besides, the can of worms has been opened for 200+ years. We're not going back. (And guess what - the judges haven't destroyed the United States!)

     (of course - if you sarcastically respond "yes they have" or "they're on their way" etc then guess what - congress is worse to blame for not reigning them in. congress is 500+ people. the president has armies under his control. 9 people are holding them hostage?

     i don't think so.

     Posted by urmygyro at 01/06/2009 @ 5:59pm

139. i think this all boils down to you don't like abortion and some other things you would probably label part of a "liberal agenda" and the supreme court is where you've chosen to do battle because conservatives have lost their holding on the presidency and congress.

     Posted by urmygyro at 01/06/2009 @ 6:02pm

140. Before I get into this...I just want to point out how ginormous this conversation has gotten (though it's also been really fun and really good, I think). I hate to be a tool, but...7 posts? That's an awful lot! :D That notwithstanding, I'll try to answer them in 2 or 3 by grouping arguments.

     Is originalism flawed? Yes. Is Scalia flawed? Yes. That should answer a paragraph from your posts :D The question, though is whether originalism is the lesser of available evils. I recognize that judges are sometimes smart enough to make their own opinions LOOK like objective extrapolations of the law. The problem is that at least I have some way of saying "hey, this was a bad decision!" As long as the standard is the judge's own moral preferences...you don't have any standard by which to say a decision's bad. That's a problem because it means you don't have any way of telling whether a judge has exceeded their legitimate authority. I'll admit that my standard isn't perfect either (as you say, different judges disagree on what implications my standard has), but I still think that's better than complete standardlessness.

     The response to this I saw was justiciability. Many parts of this just deal with the particular parties in a case (standing, personal/ subject-matter jurisdiction, etc.). Crucially, none of them says how far a court can go in curtailing legislative self-government. Even if you take out political questions (which arguably should have been done for Bush v. Gore), you're still left with a VAST sphere of standardlessness and I think that's deeply problematic. Certainly, NO ONE at the outset intended for that to be the case. No one even dreamed that the Court could possibly be justified in doing what you want it to do.

     Posted by Thrawn at 01/06/2009 @ 6:14pm

141. Also, I have to go soon so I'll be quick here. I'll try for a more thorough response to some things later tonight.

     If the original understanding of the COnstitution was that cases would imply broader rules of law, and you couple that with the SUpremacy Clause, you have a pretty clear justification for judicial review on my originalist grounds.

     I think it's telling that your only response to the two burdens I put is checks. I've already pointed out how they're virtually meaningless. It's almost impossible to impeach a judge, and it's only a little easier to amend the Constitution on the basis of just one decision. As such, for all intents and purposes, accountability doesn't really exist.

     When I say power is unlimited, I don't mean that justices can send armies. I mean that you have no clear means to define the boundaries of their authority vis a vis other branches of government (ie how much they can interfere). Absent that, I still think your position has a serious flaw.

     I hold an originalist position, not becaues I just want Roe overturned, but because I think it's the most theoretically coherent account available. I just don't see how "judge's morality" can possibly be a good legal standard in a system of enumerated powers.

     Posted by Thrawn at 01/06/2009 @ 6:22pm

142. Posted by Thrawn at 01/06/2009 @ 4:52pm

     I will grant that there are many involved in administering justice - prosecuters, judges, etc. - try to remain impartial in the application of justice. However, I would also argue that this is seperate from applying an textualist interpretation. For example, you hear about judges throwing the book at someone to make them an example - that's not a moral consideration, it is an efficacy consideration. You tried to collapse these two into one, and I don't think that works. I also think you are trying to slide in textualism behind making the plausible claim that judges try to be impartial, this too is a seperate issue.

     The reason I keep bringing common law into the discussion is because you tried to say textualism applies to statute interpretation and were using that to support your Constitutional claims. Pointing to common law undercuts that approach. I agree that common law doesn't apply to the Constitution.

     I will also grant that it is possible to have a rough idea about original intent, but I would also argue that this idea false apart the minute you have to apply it to a concrete circumstances involved in a specific case - then you have to go on to making judgments that go beyond original intent such as efficacy, common law if it isn't solely a Constitutional question, and so forth.

     Posted by srjenkins at 01/06/2009 @ 7:11pm

143. Thrawn wrote: "The problem is that at least I have some way of saying "hey, this was a bad decision!" As long as the standard is the judge's own moral preferences...you don't have any standard by which to say a decision's bad."

     1 - which originalist decisions have been bad? i don't think you have any to point out. you only think of this in theory. let the rubber meet the road - make us understand what's good, what's bad. be specific.

     2 - give me some cases holdings that were the result of the judge's own moral preferences. and in at least one of the cases - tell me why.

     thanks.

     Posted by urmygyro at 01/06/2009 @ 7:16pm

144. I agree that many of the items Katrina lists are important, the question always is "how to pay for it?" With lending reduced by the private sector, the government is being called into fill the capital void, but at what cost? Would it not make more sense to stabilize the mortgage business, where all the problems started first? This is exactly what Sweden did in the 1980's after their deregulated mortgage market imploded. It cost them 20% of GDP to nationalize ALL Swedish mortgages. In our scale of economy it would cost approximately $2.6T, which is far less than has been promised by the Fed, TARP, TALF, etc. which now totals almost $8T. For a 3 $T more, we could have purchased all mortgages nationwide. I am not opposed to nationalization on principle, but it seems we are not spending our collective principle wisely. I don't know if another round of social programs, designed to offset a financial leak we are not dealing with systemically, is the best way to approach it. Once mortgages are stabilized, then let them talk about which social programs to implement.

     Posted by OneMoreOpinon at 01/06/2009 @ 7:21pm

145. Posted by Thrawn at 01/06/2009 @ 5:00pm

     I'll tell you what tears it for me. It is all well and good to talk about the application of law within the strict realm of political philosophy and ideals. The problem, to my mind, is when you move to talking about a specific manifestation - as you do when you talk about the U.S. Constitution.

     When you make that move, it then becomes a matter of what is the case, and is the "ought" you are proposing something that can be implemented? Is it better in reality? Does implementing it create new problems - like the fact that I don't see how you can be an originalist and say that the judicary has the power to tell the executive what to do, i.e., Marbury vs. Madison was an unconstitutional "amendment" to the Constitution. I think that's a major problem in your argument.

     Posted by srjenkins at 01/06/2009 @ 7:21pm

146. Thrawn - who judges the judges' standards, in your world? a panel of judges on top of the supreme court? platonic guardians for the platonic guardians?

     Posted by urmygyro at 01/06/2009 @ 7:22pm

147. Posted by Thrawn at 01/06/2009 @ 5:09pm

     I agree with the bulk of this post. However, I think the you are missing the implementing new problems issue I raised above @ 7:21pm and by others.

     Posted by Thrawn at 01/06/2009 @ 5:17pm

     "......if you believe that the judiciary is to have limited powers like all other branches, you have to either explain how giving them functionally unlimited powers (since whatever a judge morally feels can be legitimate law) is justified, or how this somehow isn't unlimited."

     Actually, I would argue that judges are inherently limited because they don't get to decide which questions come before them. They can only bring judgments on questions that don't come before them. They are also constrained by the fact that their arguments have to be plausible based on some standard - or else will be overturned - unless you are the Supreme Court which brings us back to the restricted set of questions issue.

     "...2) have a justification for imposing their preferences over those of democratically-elected majorities."

     Because someone needs to do the job - that's the justification.

     Posted by srjenkins at 01/06/2009 @ 7:27pm

148. Thrawn wrote: "I think it's telling that your only response to the two burdens I put is checks. I've already pointed out how they're virtually meaningless. It's almost impossible to impeach a judge, and it's only a little easier to amend the Constitution on the basis of just one decision. As such, for all intents and purposes, accountability doesn't really exist."

     and Rome came tumbling down...

     what I think is telling is you just keep repeating yourself - and I'm the one who's suppose to answer your questions!

     try answering some of mine! i've asked A LOT of good ones you've completely ignored.

     Posted by urmygyro at 01/06/2009 @ 7:36pm

149. Posted by urmygyro at 01/06/2009 @ various

     I agree with the vast majority of your commentary. It's coming from a slightly different angle, but it's on point.

     Posted by Thrawn at 01/06/2009 @ 6:14pm

     "The problem is that at least I have some way of saying "hey, this was a bad decision!" As long as the standard is the judge's own moral preferences...you don't have any standard by which to say a decision's bad."

     Here's my standard. Is it just? If Solomon manages to find out who the real mother is, then I have to respect his judgment however he gets there. And if we are going to invoke democratic principles, nothing motivates the people more than a belief that they are subject to injustice.

     "...it's only a little easier to amend the Constitution on the basis of just one decision."

     I've wanted to slip this in here, even though it is a bit controversial. I think the Supreme Court's ability to change it's mind gives the Constitution some necessary flexibility beyond the rigid amendment approach. While there is obvious problems that can arise from that, it also has important - and I would argue indispensible - benefits.

     Posted by srjenkins at 01/06/2009 @ 7:41pm

150. Thrawn - the constitution itself is silent on the appropriate method of constitutional interpretation. If the framers intended for the constitution to be interpreted in a specific manner they could have indicated as much in the text of the Constitution itself. The framers, most of whom were lawyers and legal scholars, would presumably have known the confusion their lack of doing so would cause. The absence of any such guidance suggests either implicit support for contemporary interpretation, or that they could not agree on the correct method, neither of which should bind future generations.

     Posted by urmygyro at 01/06/2009 @ 8:08pm