December 8, 2012

"There is no, 'Trust us, changes are coming' clause in the Constitution."

"To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction."

40 comments:

David said...

A degree of skepticism?

The Constitution, and especially the Bill of Rights, reflect the sure fact that given the chance government and the people who run it will trample individuals and their rights whenever they find it expedient to do so.

edutcher said...

The whole idea of the Bill of Rights is government can't be trusted.

Nice to see somebody on the bench gets that.

Sam L. said...

Exactly. Some of the Founders trusted government even less than most.

Brent said...

Good news! Smart judge. The immoral position of the Obama administration and it's short-sighted selfish supporters have lost a battle.
By God's grace, they will lose this war on Christianity.

leslyn said...

Nice turn of phrase. Can I use that for Walker's jobs promise?

Hagar said...

Is it not an intended feature of the way the AHCA is designed, that by the time people and corporations suffer tangible damages, the bureaucracy be so far advanced that implementation be next to impossible to stop and roll back?

BDNYC said...

Ignoring the speeding train that is coming towards plaintiffs in the hope that it will stop ...

Timely language.

n.n said...

The Constitution is organized around the idea that competing interests (e.g. three branches, a plurality of senators, a plurality of representatives) will prevent each other from running amuck. It further recognizes that a monopoly (especially authoritarian) and monopolistic practices undermine self-correction through the marginalization or evisceration of competing interests. This is why the authority granted to the federal government was explicitly constrained and distributed to the states.

Liberty is only suitable for individuals capable of self-moderating behavior.

The idea of "self-restraint" is implicit with the recognition of individual and equal dignity.

The Constitution is a highly pragmatic guide based on principles. It was only marred by the introduction of language inconsistent to the spirit and letter of its writing, which has since been corrected.

ricpic said...

The Founders knew they weren't gods. Only self-worshippers could've gotten us into the present pickle.

n.n said...

The Declaration of Independence (the establishment document) explicitly recognizes that consolidation or monopoly of power engenders progressive corruption. It is not skepticism. It was observation of historical and contemporary evidence which led them to their conclusion.

They recognized the robustness of distributed systems, which ultimately are individuals. They recognized the efficiency of a centralized system, but they sought to explicitly constrain its behavior and authority. They recognized that accountability is fostered through proximity, which is why the authority of the federal government is necessarily limited and focused.

cubanbob said...

The decision by this court isn't out of left field. The SCOTUS in the ACA ruling did rule the commerce clause has an outer limit although it did not define what the limit is. When this and the other similar cases come before the supreme court, these may be the cases that start to define the limits of congressional power under the commerce clause.

Lem said...

Is that a slam on the chief?

Even if it isn’t... I like how it sounds.

Indigo Red said...

Ironic. The Bill of Rights itself was addressed and adopted because of the nonexistent "Trust us, changes are coming" clause.

Michael K said...

The organized clergy of the Catholic Church could begin to doubt the wisdom and benevolence of the left wing government they have supported for 40 years.

Nah.

Alex said...

Even though the Founders were humble men, I consider them gods.

traditionalguy said...

A system of limited powers that flows up from citizens instead of an all powerful rule that flows down from a divine right Caesar/King approved by a World Religion Pope is getting a bad rap these days.







Oso Negro said...

ricpic said...
The Founders knew they weren't gods. Only self-worshippers could've gotten us into the present pickle.

12/8/12 12:07 PM


And self-stimulators..

Tyrone Slothrop said...

Separation of church and state originated in the need to prevent the state from adopting a compulsory national religion. We will find out if it also protects religion from compulsion by the state.

leslyn said...

Indigo Red said... Ironic. The Bill of Rights itself was addressed and adopted because of the nonexistent "Trust us, changes are coming" clause.

Such a clause was nonexistent in the Constitution, as you say, but it was added to fulfill a promise for ratification of the Constitution. That was a "Trust us, changes are coming." Was it the times, that it was abided by?

whoresoftheinternet said...

Raise your hand if you actually believe that the Supreme Court under Benedict Arnold will actually protect religious liberty.

......

Those who raised their hands: wanna buy a bridge?

Unknown said...

""Nice turn of phrase. Can I use that for Walker's jobs promise? ""

Yet another demonstration of why liberals are liberals. They can't really understand abstract thinking..... Thus rather than try to grapple with the abstract, even philosophical concept of limited government, they bring the discussion down to the level of the personal, in this case the illustrious governor of a Midwestern state.

Leslyn here's to you, I feel your lizard brain level pain.

McTriumph said...

Ezra Klein said the Constitution was obsolete on Mourning Joe this fall. Of course he hasn't been on much since, because he admitted what the rest of the young journalist, that all sound like they had speech therapy in junior high, believe. He's being punished for exposing what they all truly believe on Mourning Joe. In the 21st century the Constitution is meaningless and besides it's a annoying political impediment to great governance by the ONE.

FORWARD!

Chip Ahoy said...

I feel your lizard brain level pain

I'm feel'n that lizard brain level pain too pow right there in the bump at the end of my brainstem before the lumpy crumpled stuff.

I cannot penetrate the double negative doublebackspeak in Reverseland when Judges are doing the talking. I can't follow the flips. Especially the negative attitude flips. A document with positive attitude about a negative attitude to check inherent negative attitude in any document produced held in mind presently suspiciously or possibly dependently. I told you I cannot follow it.
I'm with Leslyn, if you guys think it's great, then okay, it then it must be good for Walker too.

Richard Dolan said...

The judge was discussing a standing issue, and the requirement that a plaintiff show actual or imminent harm from the challenged gov'tal action to meet the 'injury in fact' component of standing. The O-team argued that the Catholic plaintiffs lacked standing because HHS was considering a change to the O-care regs that might prevent the mandates from applying to these plaintiffs. Several other courts had accepted that argument and dismissed similar challenges. Judge Cogan disagreed, mainly because the current regs are themselves a 'final rule' duly promulgated by HHS that sets forth the current mandate. If HHS changes them during the litigation, that may make the case moot at that stage but does not deprive plaintiffs of standing now merely because HHS says it is considering such a move.

The quote from the judge's decision (especially the 'degree of skepticism' phrase) echoes many SCOTUS decisions in the First Amendment/free speech context, where the Court has held that gov'tal limitations on speech, as in the McCain-Feingold cases, offend core First Amendment values. The context here is different but the point still has some sting even in the standing context.

halojones-fan said...

Laws are not software, to be rushed into release and patched into full functionality afterwards

Unknowable said...

"Laws are not software, to be rushed into release and patched into full functionality afterwards"

"Yes we can!", said Nancy Pelosi, Harry Reid and Barack Obama.

n.n said...

halojones-fan:

It wasn't always that way. The so-called "rapid development cycle" became possible with an instant distribution channel (i.e. Internet). Before the advent of this ubiquitous electronic channel, the risk and cost of distributing a marginal product were higher, which in turn required better quality control. Today, it is sufficient for a product to be functional rather than operational.

Incidentally, this is another example of dissociation of risk. A proper perception of risk is undermined when a progressive partial mitigation can occur in a narrow time frame. It is analogous to a mathematical function which is not strictly continuous, but is highly differentiable, and therefore can be reasonably modeled as both continuous and differentiable. An implicit "smoothing" occurs because it is practical.

n.n said...

Tyrone Slothrop:

Exactly.

The First Amendment binds the authority of the federal government, and specifically Congress. The derivative works encompassed in the popular "separation of church and state" phrase were invented whole cloth and are not supported by The Constitution.

The Fourteenth Amendment binds the authority of the state governments. This amendment implicitly enforces the First Amendment through mutually reconcilable rights and enforcement.

So, we have a pathway to bind the authority of government. Not of private citizens.

Something else that is worth noting. The Constitution only has jurisdiction over citizens. The governance of both legal and illegal immigrants, whether resident or visitor, are within the jurisdiction of lesser federal, state, and local laws; other than the explicit exception of treason and the implicit exception of diplomatic immunity.

That said, we are often selective in recognizing The Constitution's authority.

Section 4 - Republican government

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion...


and another example:

nor shall any State deprive any person of life, liberty, or property, without due process of law

Sometimes we simply ignore it for the sake of personal convenience.

David said...

Alex said...
Even though the Founders were humble men . . . .


Their humility was variable, both as to each individual and the group. Washington, Hamilton, Jefferson, Jay, Franklin and many others were decidedly not humble in temporal matters. They could be self effacing (except perhaps Hamilton) but that was mostly manners and charm. Before God they were more humble, even though many were only marginally religious. They knew that there were bigger things than themselves.

Dante said...

They recognized the robustness of distributed systems, which ultimately are individuals. They recognized the efficiency of a centralized system, but they sought to explicitly constrain its behavior and authority.

I think they also recognize that collection of power sucks, warping the original intent.That's why they wanted a small federal government and the states to have autonomy. Works great for experimentation of government, but somewhere along the line someone decided they had it all figured out. And here we are.

Hammond X Gritzkofe said...

Well now, that was refreshing! Sadly it seems to be a minority opinion these days.

Paul said...

If you read the works of the framers of the Constitution you will find they totally distrusted governments!

That is why our government is set up so complex. Very hard to get laws passed and very easy to obstruct their passage.

And note many of them wrote the firearms in the hands of the citizenship was a MUST to keep the government from becoming a monster (and most governments one day, sooner or later, become.)

n.n said...

Dante:

The universe is clearly a selective conception. Its nature is subordinate to the human ego.

Stated otherwise: we are pretenders to divinity.

Dante said...

Dante:

The universe is clearly a selective conception. Its nature is subordinate to the human ego.

Stated otherwise: we are pretenders to divinity.


The universe trumps the human ego. There are the facts of life, and no amount of ego is going to change them. The advent of life within the laws of the universe allows any perception of it in any event.

I think what you mean instead is that egos warp mere mortal's perception of the universe. And, we are probably limited in what of it we can detect. Of course, those egos are a small part of the Universe, and a part of it.

This is almost a truism, isn't it?

leslyn said...

I don't reply to Unknowns.

But if I did I would say that my brain understands the reality of being at the top (or bottom, however you look at it) of the monthly job loss report.

Unknown can go back to the abstract now.

AllenS said...

"There is no, 'Trust us, changes are coming' clause in the Constitution."

I wonder if all of the members of the Supreme Court understand this concept. I have my doubts about 4 of them.

n.n said...

Dante:

The first line is an expression of sarcasm. The term "selective" implies capricious malleability. The second expresses the same without the comedy.

We are certainly limited to what we can sense and, possibly, conceive; although, the latter depends on the nature of consciousness. This limitation is an inherent feature of existing within and being constrained by the system you are attempting to characterize. This principle is a superset of Heisenberg's Uncertainty Principle.

Unknown said...

Leslyn, I reply to blithering...

You are having a real bad day I can tell... Hope you feel better..... because this..

....I would say that my brain understands the reality of being at the top (or bottom, however you look at it) of the monthly job loss report....

..again has really nothing to do with the discussion. Why don't you find a blog where the high school kids discuss reality?

Unknown said...

Chocolate Chip sez.....I'm feel'n that lizard brain level pain too pow right there in the bump at the end of my brainstem.....

You guys are having a really bad reaction to a discussion about political philosophy. Hope you find a site that allows you to be more mentally comfortable.

Eric said...

The SCOTUS in the ACA ruling did rule the commerce clause has an outer limit although it did not define what the limit is.

Meh. Between the ability to tax and then withhold funds from states that don't kowtow to Washington as well as "commerce affects everything" rulings like Wickard and Raich, they've pretty much set that limit so far out it's effectively nonexistent. Just what would Congress have to do to exceed its Commerce clause powers?