9 ms·

> No, they were pretty clear about that when they wrote that pesky constitution thingy (and for good reason.) They were clear about many other things, but the

by xyzzyz 7y ago

> No, they were pretty clear about that when they wrote that pesky constitution thingy (and for good reason.) They were clear about many other things, but the idea of interpreting constitution as it was meant by the founders has long been dead, with the coup de grace having been delivered by Helvering v. Davis. The constitution is dead, and its skin is worn by 9 people in Supreme Court who get to decide what they want it to mean basically any way they please.

pdonis 7y ago
I would say that Wickard v. Filburn is a better example of a coup de grace. Setting up a social security program at least has some reasonable relationship to "provide for the general welfare". But growing food on your own land for your own consumption has no reasonable relationship to "interstate commerce".
- xyzzyz 7y ago
  I think you’re right. I think Helvering v. Davis was the mortal blow that enabled further expansion of federal government beyond, as Founders intended, the Enumerated Powers, but the Wickard v. Filburn was indeed coup the grace.
  - anfilt 7y ago
    I would disagree. The 16th amendment gave the goverment the power to do something like social security as it explicitly allows the taxing of income. The case you mention mainly concerns how the federal government may spend money collected via taxes. Wickard v. Filburn in my honest opinion seems to allow the goverment even greater involvment in personsal/individual matters under the guise of interstate commerce.
    - pdonis 7y ago
      > The 16th amendment Which was (to make the point I think you are making explicit) at least an actual amendment to the Constitution, the way changes like that are supposed to be done. One can argue about whether it was prudent policy, but at least it was using the mechanism for change that the Framers explicitly provided.
    - xyzzyz 7y ago
      Not at all, no. The 16th amendment allows federal government to impose income taxes. Obviously it makes the tax part of social security constitutional. In no way however it makes the spending part of the social security constitutional, because it clearly doesn’t say anything about what the government can use that money for. For that, we had the Enumerated Powers of Article I, Section 8, along with any powers explicitly listed in constitution, like for example 16th amendment.
- jeffdavis 7y ago
  "General welfare" appears in the preamble. The preamble does not grant any powers at all. Congress is only granted powers in Article I. Redistributing wealth (like Social Security) is not one of those powers.
  - lisper 7y ago
    Of course it is: "The Congress shall have Power To ... provide for the common Defence and general Welfare of the United States"
    - xyzzyz 7y ago
      That’s contrary to what the authors of the constitution have meant when they wrote it. See my other comment. Roughly speaking, if the “general welfare” was supposed to mean “anything the congress wants to do to provide for general welfare”, there would be absolutely no point in enumerating the powers it does have. Madison was extremely clear about that, and this is how this article was universally understood (otherwise, the constitution would have had no snowball chance in hell of passing) up until Helvering v. Davis, when it was promptly thrown away and replaced with the opposite of original intention.
      - pdonis 7y ago
        While I sympathize with your argument, I have to point out that, considered as a general argument about why specific powers are enumerated in the Constitution, the first blow against it was struck long before Helvering v. Davis. In McCulloch v. Maryland in 1819, the same expansive logic that wasn't supposed to be used, according to Madison, was applied to the necessary and proper clause, in order to argue that a national bank was constitutional even though that specific power is nowhere enumerated. In fact, you could argue that it goes back even further than that: in Marbury v. Madison in 1803, the Court ruled that it had the power to declare acts of Congress unconstitutional, even though the Constitution nowhere says the Supreme Court has that power. One could argue that that is implicit in "judicial power" (and that's basically what Chief Justice Marshall argued in his opinion), but the larger point is still valid, that way too many things were left unstated and implied in the Constitution for arguments like the one of Madison's that you refer to to work in the long run. It's also worth pointing out that not all of the Framers agreed with the viewpoint Madison expressed that you refer to. Marshall, for example, was one of the ones on the other side: he thought rulings like the one he made in McCulloch v. Maryland were perfectly well within the intended meaning of the Constitution and were not expanding the intended Federal power at all.
squidlogic 7y ago
Originalism is alive and well. It’s revival and subsequent spread is probably the most lasting legacy of the late Justice Antonin Scalia.
- bksenior 7y ago
  Jefferson was staunch about the idea that the constitution should be rewritten every 19 years, so this idea of Originalism is conservatism draped in rhetorical clothing. Founder intention is absolutely unknowable and it's a ridiculous argument.
  - syshum 7y ago
    Jefferson was staunch that all laws including the constitution should have expiration dates and be forced to be reauthorized by each generation (which he put at every 19 years) as it would be unethical for one generation to impose thier laws on the next
    - logfromblammo 7y ago
      "The Earth belongs in usufruct to the living."
  - remarkEon 7y ago
    If only there was a body of scholarship that we could look at to discern what their intent was. I'm being glib, but your broader point is right - Jefferson was skeptical of permanency, but other Founders weren't. I also think Jefferson was just wrong. One of the things that needed to be balanced or accounted for was figuring out how to provide a sense of stability, which the Monarchy had done previously. I am super skeptical that the US would have survived as long (or survived the Civil War) if the Constitution went through a re-write every generation. There's no way to have any sort of long term vision in this scenario.
  - the_watcher 7y ago
    > the constitution should be rewritten every 19 years No, he did not. He thought that the government should work on cycles of 19 years, which could include re-evaluating the Constitution, but focused mainly on extension of debts, term limits, governmental ownership of land. The "Jefferson thought we should rewrite the Constitution every 19 years" trope is used to launder disliking a Constitutional provision but having no way around it but to throw the baby out with the bathwater. EDIT: changed "and has" to "but having"
K0SM0S 7y ago
Isn't it time to consider writing a new Constitution then? Most countries have had "a few" (2, 3, 4...) since the inception of the formalized idea. We now know how to draft "good enough" Constitutions by common standards (relatively to history and other countries). It's a famous US peculiarity in Constitutional Law studies: to have gone the amendment path for so long. To have been so resilient to epochs, to change, to greatness. And yet as of the 21st century, it shows elements of "unfairness" and approximation that seem hard to sustain further, to "sell" to the masses for much longer, or so it seems from a nerdy-law standpoint. There's evident success but it may have been at the expense of a significant degree of actual democracy — as you suggest for the judiciary branch: this infringes on the legislative branch in this case, and outright fails the accountability check absolutely required from lawmakers. By comparison, judges are elected in the US system, which is accountability put in place to counter or mitigate their ability to make the law by way of setting precedents, giving citizens an indirect say in the matter. I don't know. I've always pondered on this question. I observe tension rising in this direction over the last 20 years (since Bush Jr essentially). Maybe it's just my personal bias speaking — no wonder a programmer sees the law as inneficient code to be refactored asap! ;-)
- jaywalk 7y ago
  We don't have a mechanism to replace the Constitution. Short of getting all 50 states to agree on it (good luck) it's never going to happen without a civil war.
  - admax88q 7y ago
    You _do_ have a mechanism, you cited it in your statement. Sure its a difficult mechanism, getting agreement from all parties involved, but changing the highest law of the land _should_ be difficult.
    - jaywalk 7y ago
      When I said "we don't have a mechanism" I meant that it's not spelled out in the Constitution, e.g. how the process for Amendments is in there. It's basically just "common sense" that if everyone agrees, you can change whatever you want. I do agree that it should be extremely difficult, and it obviously is.
ninkendo 7y ago
I don't think I'd go that far. The US legal system has been pretty consistent with respecting Case Law when making new decisions, and it's rare when a landmark decision is made without any precedent. Interpretation of the constitution generally means building on previous interpretations, which means you'll always get some "drift" away from the original intention (case in point the second amendment, which has drifted very far from the original "well-regulated militia" framing towards inalienable, unquestionable gun rights.) But the drift should typically be incremental in nature, and we've seen few examples of purely "novel" interpretations by the courts.
dang 7y ago
Please don't take HN threads into political flamewar, or on generic political tangents. Those things are against the site guidelines: https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html. We detached this subthread from https://news.ycombinator.com/item?id=21753836 https://news.ycombinator.com/item?id=21753836 and marked it off-topic.

by xyzzyz 7y ago

pdonis 7y ago

I would say that Wickard v. Filburn is a better example of a coup de grace. Setting up a social security program at least has some reasonable relationship to "provide for the general welfare". But growing food on your own land for your own consumption has no reasonable relationship to "interstate commerce".

xyzzyz 7y ago
I think you’re right. I think Helvering v. Davis was the mortal blow that enabled further expansion of federal government beyond, as Founders intended, the Enumerated Powers, but the Wickard v. Filburn was indeed coup the grace.
- anfilt 7y ago
  I would disagree. The 16th amendment gave the goverment the power to do something like social security as it explicitly allows the taxing of income. The case you mention mainly concerns how the federal government may spend money collected via taxes. Wickard v. Filburn in my honest opinion seems to allow the goverment even greater involvment in personsal/individual matters under the guise of interstate commerce.
  - pdonis 7y ago
    > The 16th amendment Which was (to make the point I think you are making explicit) at least an actual amendment to the Constitution, the way changes like that are supposed to be done. One can argue about whether it was prudent policy, but at least it was using the mechanism for change that the Framers explicitly provided.
  - xyzzyz 7y ago
    Not at all, no. The 16th amendment allows federal government to impose income taxes. Obviously it makes the tax part of social security constitutional. In no way however it makes the spending part of the social security constitutional, because it clearly doesn’t say anything about what the government can use that money for. For that, we had the Enumerated Powers of Article I, Section 8, along with any powers explicitly listed in constitution, like for example 16th amendment.
jeffdavis 7y ago
"General welfare" appears in the preamble. The preamble does not grant any powers at all. Congress is only granted powers in Article I. Redistributing wealth (like Social Security) is not one of those powers.
- lisper 7y ago
  Of course it is: "The Congress shall have Power To ... provide for the common Defence and general Welfare of the United States"
  - xyzzyz 7y ago
    That’s contrary to what the authors of the constitution have meant when they wrote it. See my other comment. Roughly speaking, if the “general welfare” was supposed to mean “anything the congress wants to do to provide for general welfare”, there would be absolutely no point in enumerating the powers it does have. Madison was extremely clear about that, and this is how this article was universally understood (otherwise, the constitution would have had no snowball chance in hell of passing) up until Helvering v. Davis, when it was promptly thrown away and replaced with the opposite of original intention.
    - pdonis 7y ago
      While I sympathize with your argument, I have to point out that, considered as a general argument about why specific powers are enumerated in the Constitution, the first blow against it was struck long before Helvering v. Davis. In McCulloch v. Maryland in 1819, the same expansive logic that wasn't supposed to be used, according to Madison, was applied to the necessary and proper clause, in order to argue that a national bank was constitutional even though that specific power is nowhere enumerated. In fact, you could argue that it goes back even further than that: in Marbury v. Madison in 1803, the Court ruled that it had the power to declare acts of Congress unconstitutional, even though the Constitution nowhere says the Supreme Court has that power. One could argue that that is implicit in "judicial power" (and that's basically what Chief Justice Marshall argued in his opinion), but the larger point is still valid, that way too many things were left unstated and implied in the Constitution for arguments like the one of Madison's that you refer to to work in the long run. It's also worth pointing out that not all of the Framers agreed with the viewpoint Madison expressed that you refer to. Marshall, for example, was one of the ones on the other side: he thought rulings like the one he made in McCulloch v. Maryland were perfectly well within the intended meaning of the Constitution and were not expanding the intended Federal power at all.

squidlogic 7y ago

Originalism is alive and well. It’s revival and subsequent spread is probably the most lasting legacy of the late Justice Antonin Scalia.

bksenior 7y ago
Jefferson was staunch about the idea that the constitution should be rewritten every 19 years, so this idea of Originalism is conservatism draped in rhetorical clothing. Founder intention is absolutely unknowable and it's a ridiculous argument.
- syshum 7y ago
  Jefferson was staunch that all laws including the constitution should have expiration dates and be forced to be reauthorized by each generation (which he put at every 19 years) as it would be unethical for one generation to impose thier laws on the next
  - logfromblammo 7y ago
    "The Earth belongs in usufruct to the living."
- remarkEon 7y ago
  If only there was a body of scholarship that we could look at to discern what their intent was. I'm being glib, but your broader point is right - Jefferson was skeptical of permanency, but other Founders weren't. I also think Jefferson was just wrong. One of the things that needed to be balanced or accounted for was figuring out how to provide a sense of stability, which the Monarchy had done previously. I am super skeptical that the US would have survived as long (or survived the Civil War) if the Constitution went through a re-write every generation. There's no way to have any sort of long term vision in this scenario.
- the_watcher 7y ago
  > the constitution should be rewritten every 19 years No, he did not. He thought that the government should work on cycles of 19 years, which could include re-evaluating the Constitution, but focused mainly on extension of debts, term limits, governmental ownership of land. The "Jefferson thought we should rewrite the Constitution every 19 years" trope is used to launder disliking a Constitutional provision but having no way around it but to throw the baby out with the bathwater. EDIT: changed "and has" to "but having"

K0SM0S 7y ago

Isn't it time to consider writing a new Constitution then? Most countries have had "a few" (2, 3, 4...) since the inception of the formalized idea. We now know how to draft "good enough" Constitutions by common standards (relatively to history and other countries). It's a famous US peculiarity in Constitutional Law studies: to have gone the amendment path for so long. To have been so resilient to epochs, to change, to greatness. And yet as of the 21st century, it shows elements of "unfairness" and approximation that seem hard to sustain further, to "sell" to the masses for much longer, or so it seems from a nerdy-law standpoint. There's evident success but it may have been at the expense of a significant degree of actual democracy — as you suggest for the judiciary branch: this infringes on the legislative branch in this case, and outright fails the accountability check absolutely required from lawmakers. By comparison, judges are elected in the US system, which is accountability put in place to counter or mitigate their ability to make the law by way of setting precedents, giving citizens an indirect say in the matter. I don't know. I've always pondered on this question. I observe tension rising in this direction over the last 20 years (since Bush Jr essentially). Maybe it's just my personal bias speaking — no wonder a programmer sees the law as inneficient code to be refactored asap! ;-)

jaywalk 7y ago
We don't have a mechanism to replace the Constitution. Short of getting all 50 states to agree on it (good luck) it's never going to happen without a civil war.
- admax88q 7y ago
  You _do_ have a mechanism, you cited it in your statement. Sure its a difficult mechanism, getting agreement from all parties involved, but changing the highest law of the land _should_ be difficult.
  - jaywalk 7y ago
    When I said "we don't have a mechanism" I meant that it's not spelled out in the Constitution, e.g. how the process for Amendments is in there. It's basically just "common sense" that if everyone agrees, you can change whatever you want. I do agree that it should be extremely difficult, and it obviously is.

ninkendo 7y ago

I don't think I'd go that far. The US legal system has been pretty consistent with respecting Case Law when making new decisions, and it's rare when a landmark decision is made without any precedent. Interpretation of the constitution generally means building on previous interpretations, which means you'll always get some "drift" away from the original intention (case in point the second amendment, which has drifted very far from the original "well-regulated militia" framing towards inalienable, unquestionable gun rights.) But the drift should typically be incremental in nature, and we've seen few examples of purely "novel" interpretations by the courts.

dang 7y ago

Please don't take HN threads into political flamewar, or on generic political tangents. Those things are against the site guidelines: https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html. We detached this subthread from https://news.ycombinator.com/item?id=21753836 https://news.ycombinator.com/item?id=21753836 and marked it off-topic.