“Further, the Court initially lacked a home of its own and any real prestige. That changed during the Marshall Court (1801–1835), which declared the Court to be the supreme arbiter of the Constitution (see Marbury v. Madison) and made several important rulings which gave shape and substance to the constitutional balance of power between the federal government and the states.

Current indifference to the “original intention” —shorthand for the meaning attached by the Framers to the words they employed in the Constitution and its Amendments—is a relatively recent phenomenon. Those who would adhere to it are scornfully charged with “filio-pietism,” “verbal archeology,” “antiquarian historicism that would freeze [the] original meaning” of the Constitution. We are told that the Framers intended to leave it “to succeeding generations [meaning judges] . . . to rewrite the ‘living’ constitution anew,” an argument opposed to historical fact. The sole and exclusive vehicle of change the Framers provided was the amendment process; judicial discretion and policymaking were in high disfavor; all “agents and servants of the people” were to be “bound by the chains” of a “fixed Constitution.” Certainly Justice Story did not regard himself as holding a commission “to rewrite the ‘living’ constitution anew”:

“Nor should it ever be lost sight of that the government of the United States is one of limited and enumerated powers; and that a departure from the true import and sense of its powers is pro tanto, the establishment of a new Constitution. It is doing for the people, what they have not chosen to do for themselves. It is usurping the functions of a legislator.”

Why is the “original intention” so important? The answer was long since given by Madison: if “the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers.” A judicial power to revise the Constitution transforms the bulwark of our liberties into a parchment barrier. This it was that caused Jefferson to say, “Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction.” Given a system founded on a dread of power, with “limits” to fence it about, those who demand compliance with those limits (pursuant to the counsel of four or five early State constitutions) are not to be charged with invoking the shades of the Framers in order to satisfy “the need for certainty.

The Supreme Court has no military or police powers to enforce its decisions, which are more often than not unconstitutional judicial amendments to the Constitution. We are in need of guidance by SCOTUS to determine if certain laws, policies or regulations conform to the Constitution as written, based on sound legal reasoning; but, neither the Legislative or Judicial branches, EQUAL branches, are bound to obey such decisions.

Kenny, clearly the courts are the one who decide the constitutionality of any particular law that has been challenged. I’m sure every legislator in DC has read the Constitution, but as you well know the meaning is sometimes up to differing interpretations, hence the judicial system.

And you analogy is just silly. There is over 200 years of jurisprudence to prove how wrong you are about the “rules of the game.”

he definately won’t win awards for his smarts will he?

I don’t even know how to respond to such nonsense!

The only, I repeat ONLY, role of the Supreme Court is to decide if a law, regulation, policy or decision of a lower court conforms or does not conform to the Constitution as written. Yes, there may be more than one view about whether or not the Constitutional tests are fully met. “the 1789 Act called for the Supreme Court to consist of a Chief Justice and only five Associate Justices (six total), and for the Court to meet, or “sit” in the Nation’s Capital.” They were actually required to travel regularly to all 13 judicial districts, not sit in a marble palace in the nation’s capital as potentates, but to keep them close to “the people” as servant justices, which our founders believed were the real rulers of this nation.

First Chief Justice John Jay hated his job because there was nothing really to do, as the Constitutional was self evident in its declarations. Then . . .

“Lacking any specific direction from the Constitution, the new U.S. Judiciary spent its first decade as the weakest of the three branches of government. Early federal courts failed to issue strong opinions or even take on controversial cases. The Supreme Court was not even sure if it had the power to consider the constitutionality of laws passed by Congress. This situation changed drastically in 1801 when President John Adams appointed John Marshall of Virginia to be the fourth Chief Justice. Confident that nobody would tell him not to, Marshall took clear and firm steps to define the role and powers of both the Supreme Court and the judiciary system.”

So, outside any Constitutional authority, Marshall, a judicial dictator, designed the Supreme Court to have authority over the other two branches as to matters of the Constitution, which in effect, made them the superior branch of government, making the United States in effect, into a kryptocracy. Which none of the Founding Father’s ever envisioned.

So, why nine Justices and why are there so many matters of difficult differing interpretations, because Marshall wanted it that way and he wanted to muddy the Constitutional waters to satisfy his lust for power. The Constitution is ONLY a living document through the Amendment Process, which involves the will of “the people,” not nine old farts in back robes or an extremist, majority driven Congress.

We don’t believe that, as the Bible says every word is God breathed and perfect.

why have the courts if every house and senate member must be experts on the Constitution?

I don;t know why, but every time I look at this guy I don’t want him near my family or children. He looks sleazy!

You’re right that my knowledge of the American Constitution is amateur at best but I do know that the Commerce clause covers some stuff that I wouldn’t expect. If the belief that the mandates are unconstitutional was taken seriously in legal/political circles then I’d expect to see higher profile individuals saying so…not that your profile isn’t high in my books of course.

Some links:

http://lawprofessors.typepad.com/conlaw/2009/09/is-an-individual-health-insurance-mandate-constitutional.html

http://voices.washingtonpost.com/ezra-klein/2009/12/max_baucus_the_individual_mand.html

http://www.slate.com/id/2224258/

http://www.healthreformwatch.com/2009/08/25/is-it-unconstitutional-to-mandate-health-insurance/

I don’t know whether individual mandates are constitutional but it would seem that the Supreme Court would be narrowing the applicability of the Commerce clause generally if it decided that they weren’t. The arguments I’ve read that support your opinion appear to assume that a narrower interpretation of the Commerce clause is a likely development and I’m certainly in no position to assess that point.

Another false equivalence from you.

Whose little sockpuppet are you?

Sleazy looks aside, the fact is Kent Conrad isn’t a very smart individual, and only holds his position because of inertia.

Understandably you don’t have a great understanding of the US constitution
Mike. The commerce clause was to give the federal government authority to
regulate commerce between states. IE I live in ND and Proof lives in
California. We can do business under federal law.

In this case if I don’t buy a health insurance policy, and I can only buy it
in-state by the way, how is that interstate commerce that the federal
government can regulate? It would be non-commerce in state.

Actually, if the Constitution was black and white, it woudn’t need interpreting at all.

I like him less than Dorganoff… But that isn’t saying much…

Nice sentiments, but there’s no recall for federal offices.

No, Rob, I don’t “act” as if the Constitution is “some mystic document”.

And yes, I agree that it is important for legislators to consider whether their actions are legal.

But as you and I both know, that if one or the other side disagrees with a particular piece of legislation or how it is implemented then one or the other side can certainly challenge it before the third equal branch of the government.

Your problem is that you don’t think the courts are an equal branch of the government especially if your ox is being gored.

When experts on boths sides make a constitutional argument regarding a piece of legislation then a court challenge will probably occur. You may read the Constitution one way and I another. The problem is you think you are right when it comes to this particular interpretation and I am more in Mike Adamson’s camp on this one.

Personally I don’t this this will be found unconstitutional, but we’ll just have to see what happens.

Moreover, TW, one of the meanings of “regulate” is to “make regular”(uniform). Nothing in there about mandates for private citizens to buy specific products or services.

We’ll take it to court then, Mr I-ASSume. Add a HUGE 1st Amendment violation as another problem with Constitution.

Lets say the Congress passes a law that effectively destroys supplies of halal/kosher food in the country and prohibits importation of as well CONSUMPTION of it. In other words it is now illegal to make and eat Halal/Kosher food. How does that work with the First Amendment (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..) in regards to Jews and Muslims? It is obvious such law would prevent FREE exercise of those religions, by intentionally or unintentionally creating prohibiting hurdles for people who follow those dietary laws based on their religious convictions.

Now, lets look at our situation. According to Secretary Kathleen Sebelius EVERYONE will pay for ABORTION …whether you’re male or female, whether you’re 75 or 25, you would all set aside a portion of your premium that would go into a fund, and it would not be earmarked for anything, it would be a separate account that everyone in the exchange would pay….”

What just happened? The law (Congress) effectively bars CHRISTIANS, or anybody else with religious views against Abortion from being able to participate in ALL INSURANCE PLANS in USA, thus directly punishing them for the exercise of their FAITH! Needless to say it is a direct violation of the First Amendment, whether the mandate is “voluntary” (without teeth) or not.

The repercussions of this are not confined to only Christians. If the precedent is set, the Government will be able to bully everyone else – Jews, Muslims, Buddhists and so on.

The Constitution assumes each branch are bound by an oath to defend the Constitution and to abide by all its provisions exactly as written. While SCOTUS may interpret a clause in a certain way, if their decision is not in accord with the intent of the farmers and in harmony with the clear language of the Constitution, they are not bound by such a Court decision, nor is the Executive Branch. Our framers had to assume no branch would violate its intent and clear words. For instance, the Congress is absolutely forbidden to alter, amend or reinterpret by law even one word of the Bill of Rights, exactly as written. The fact they have historically does not make it right!

Why are they allowed to get away with it? Because of the people having more loyalty to their political party or selfish needs than to the Constitution and do not take to the streets demanding the Constitution be upheld. In this case, as Whistler said, the Commerce Clause has been so perverted out of its original intent that, it can be made to mean almost anything the party in power decides it should mean. They have no fear of the people and so absolutely no reason to restrain their partisan overreaching and outright abuse of power.

For our federal government to require every citizen buy insurance and even that to include what the majority party demands as to the particulars, is clearly outside the Commerce Clause. It has nothing to do with commerce across state lines to demand citizens purchase any insurance at all. I still wish Bat One would comment on this matter!

It takes 9 to come up with silly work arounds of the clearly worded
constitution?

These guy’s are supposed to be constitutional officers. They should protect and defend the constitution.

Mike, currently the government forbids buying health care across state lines (it’s something conservatives actually want to see happen). So if there’s no interstate commerce, how can Congress use the interstate commerce clause?

oink, oink, oink . We love our pork

And all the righty politicians are doing it out of the goodness of there heart. I have a bridge to sell you. You are a conservative puppet, or really innocent and clueless, or a complete moron.
Of course they are looking to consolidate power. Just like the cons would if they ever get in power again. What 53% of the voters agreed to this. Oh, thats right those weren’t “real americans”. My dream gov’t, is not to have one party control it all. I like it when the dems control one side and the republicans and there conservative tagalongs control either the other house or the executive branch. How much Federal Gov’t , do you want , how much state gov’t do you want and how much local gov’t do you want. Some place there is a happy medium. Let us go back to bridges and roads, how much of that infrastructure do you want as the Fed. Gov’t responsibility?

Just saying you could ask every other republican or democrat congressman or sen about the constitutionallity of something and you would get the same answer.

Because the founders didn’t want to vest power in one person. It’s the same reason we don’t only have one branch, or one senator, or one house of Congress, and why we even have a vice President who has the intimate ear of the President. Checks and Balances and all that.

Divest power. If you don’t understand that premise, I guess you’re beyond explaination…

Really? It’s not a long document. Knowing the constitution was a requirement for me graduating 8th grade. It should be a requirement that everyone who writes laws knows the Supreme law of the land. What faith can we have in men who don’t understand or have an aquitance with the rather small document that tells them what they can and cannot do?

Why require that any sports player know the rules of his game? Or CEOs know buisness models? It’s only their job…

“Legal documents are NEVER living breathing things. They are set in stone and mean what they mean. Otherwize, law is useless. ” Are the rulings of the SCOTUS legal documents?

Mike, you have a way of writing a lot of words while simultaneously saying pretty much nothing.

You should run for office.

Well most of those jerks probably don’t think their power has any restraint.

I am my own 108 and do not believe in regurgitating what RUSH said or Obama Said

“Lacking any specific direction from the Constitution” Obviously the constitution was not black and white then. Justice Marshall had the first real interpretation then. As far as the founding fathers , I am guessing many were still alive in 1801. Can a constitutional historian inform us as what kind of uproar came from the framers because of this power grab? To the Web for research.

hey’re obviously not “legal documents”. Are they Legal and binding?

Kenny, clearly the courts are the one who decide the constitutionality of any particular law that has been challenged.

Only because they gave themselves that power.

But regardless, you act as though our Constitution is some mystic document that can only be interpreted by the oracles at the Supreme Court. In truth, the document is rather unambiguous (though its convenient for liberals to pretend otherwise), and I think it’s rather important to expect our legislators to consider whether or not their actions are, you know, legal.

As opposed to just throwing legislative crap against the wall to see what sticks.

Telling me I’m wrong, and history proves it is… boring. It’s a lazy way of calling me stupid, and pretending you’re smart, but without having to provide details…because you have no clue what you’re talking about. No ruling on the commerce clause has EVER addressed NON-activity.

Let’s ignore whether the following rulings are constitutional or not, and look at what they actually addressed. Reich vs Gonzales addressed personal cultivation of marijuana. United States vs. Morrison was about gender related violence.

And US vs Lopez was actually decided AGAINST the government. The argument was that the government could claim that anything affected the economy, and therefore it struck down the law.

Whether these laws were correctly decided is irrelevant. They DON’T address the issue of FORCING a purchase. The federal government has never been seen to have the power to force economic purchases, and any claim to the contrary is a lie or pure delusion. Insomuch as both Lopez and Miller addressed the government claiming that it could regulate anything it wanted under the clause that it’s affect the economy…the court has ruled mostly against the federal government. But it has not ALWAYS…so the idea that jurisprudence fully backs either one of us is something only someone who has never studied Constitutional law can claim.

Very few lawyers study the Constitution anymore. They only study case law. Therefore, if case law supports something, like say that Congress can make a law to prohibit freedom of speech, they believe it’s ok.

Your first link supports this. Never once is it asked if the law is actually unconstitutional. But it is simply argued that the court has made rulings in the past that could be used to defend this. But what does the Constitution itself say on this?

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

So does the mandate do that? No. Provably no. People who don’t have insurance aren’t engaging in interstate commerce, or in any commerce at all. Therefore, the government is expanding their powers in DEMANDING commerce where none exists…so it can regulate it. Therefore, at least this provision, is clearly unconstitutional.

It’s a lot like demanding that everyone who owns a car pay a carbon tax. People who don’t have a car would be exempt. So you make it mandatory to buy a car, so you can force them into the system.