Obamacare is upheld by the U.S. Supreme Court!

I am not a constitutional expert, but I remember the conservative Supreme Court in the thirties was ruling much of the New Deal as unconstitutional and Roosevelt proposed to expand the court to add appointees and it was extremely unpopular, but right after that one of the conservative justices switched to the liberal minority to find New Deal programs constitutional.

If you like or dislike Obamacare, Obama campaigned on expanding health care. If you interpret winning an election as a mandate, he had it. Bush won a much closer election and declared he had a mandate to change Social Security, even though in his case it wasn't talked about as much during his campaign.

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It reminds me of a toilet paper on the trees
- Paula

Yup. That was the "switch in time that saved nine." Pretty awful, even if you think the Court was wrong to rule that way.

im not used to a day off during the week. Google image searches are just too much fun.

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"The greatest danger for most of us is not that our aim is too high and we miss it, but that it is too low and we reach it." - Michelangelo.

The way he talks is one of the better arguments for increased education funding you'll ever hear. We need to reform the Dagobah school system.

Originally Posted by AKA23
The "strict constructionists" really aren't saying anything more straightforward than the evolving constitutionalists. In fact, in many ways, I think a case can be made that the opposite is true. At least those who are more liberal in their interpretation acknowledge that the Constitution is a living and breathing document that should and must adapt to new problems and new situations. The strict constructionists, like Justice Scalia, are being disingenuous too, if you want to use these loaded terms. Justice Scalia imposes his own values on the society too when he writes his opinions. He pretends that he doesn't, and prefers to hide behind notions of "limited government" and "preserving the original intent of the Founders" but in reality, he's using his own judgments and values to determine what is constitutional and what is not. That is what judges do. That's why they're on the Supreme Court. That's their job. To just pretend that none of this happens, as the "strict constructionists" seek to do, is ludicrous. [/b]

The only values a strict constructionist "imposes" is the value that judges should decided legality and constitutionality, and nothing more. This actually gives them a text by which all of their decisions must be judged. To proclaim that the Constitution is a "living document" removes, or at least significantly weakens, this check. That puts the two in wildly different situations.

This is just not true. Let me give you an example. One of the standards by which to evaluate a statute that treats people differently is that the rationale for the statue must either meet a test of "rational basis" or "strict scrutiny." If the statute treats a group of people differently that has been designated as a "suspect class (gender, race, etc) it must meet a higher test of "strict scrutiny" to be constitutional. The Constitution doesn't specify how we should apply these tests or how they should be interpreted. To use a contemporary example that is currently before the court, let's analyze gay marriage. Firstly, judges have to decide, 1) is sexual orientation a suspect class? 2) Does discrimination based on sexual orientation meet the "rational basis" test, if sexual orientation is not deemed a "suspect class" or the "strict scrutiny" standard, if it does? In order to determine whether there is a "rational basis" for the law, one has to examine one's own values and beliefs to determine whether this test is met. There is simply no other way to engage in this analysis. The liberals will say, no, it does not, there is simply no reason to prevent gays and lesbians from marrying. It is blatant discrimination which achieves no legitimate purpose. The conservatives will say that it does meet this test. They will say that it is deleterious to the society to change the definition of marriage. These concerns are legitimate and these concerns justify this discriminatory law. How is a judge to determine which of those two things are true? This analysis must be done in order to determine whether discrimination on the basis of sexual orientation is constitutional. You tell me how we are going to simply read the Constitution and apply it in order to settle this issue. How do we do this, Yoda, without engaging in the type of analysis that I have described, which by its very nature "imposes" the values of the justices on the broader society?

Obviously, you find this sort of continual rewriting to be necessary, but that leads me to several questions:

1) Do you think the Founders didn't realize that times would change? They specifically constructed the document to contain broad governing principles that would stand the test of time. They even included mechanisms to change the Constitution, and we've done that 27 times. They didn't force us to live with the same document forever, they just made sure we, as a society, had to be certain of the change before we made it. So it can't be said that they never envisioned this stuff; they'd have to be stupid not to, and they specifically included the means by which to make such changes. So to maintain your position, you have to conclude that they were wrong to require this kind of consensus. Do you?

This is, again, a matter of interpretation and values. Throughout judicial history, the interstate commerce clause has been expanded. This has been done over a broad span of time, and this expansion has given the government broader powers. An argument can be made that these expansions were necessary as society changed and grew, but we haven't changed the Constitution to make these changes. We have further defined what is "interstate commerce." Again, this is something that the Constitution did not do. There is no definition of what "interstate commerce" is in the Constitution. Therefore, we can't simply read the Constitution and apply it. The expansion, or contraction, of this power, and others, must be made by those who study the law and make these decisions. What would you prefer? Would you like a Constitutional amendment to be debated and voted on for every one of these changes that are made? In my view, that would make changing things almost impossible, very unwieldy, and completely impractical. That's why we leave amending the Constitution for very consequential things, and use its power in a very limited fashion. In the 1960's and 1970's, the Court saw fit to expand the protections of those who had been accused of crimes by affording them Miranda protections, the right to be read their rights, etc. Again, we didn't amend the Constitution to do this. We simply used the existing powers and principles grounded in the Constitution and re-interpreted them to apply to these new situations. Would you have preferred we sought to amend the Constitution for every one of these changes? If so, why, and how would that work practically?



2) Whether you think the "living document" philosophy is necessary or not, do you or do you not acknowledge that it has led to a massive increase in federal power? It seems inarguable, but I'll allow you to answer for yourself. And if so, is this or is this not one of the things the framers were specifically trying to avoid by giving the State governments plenary power, yet making the Federal government one of enumerated powers?

I think the "living document" philosophy may or may not have given the federal government more power. It depends on whether you think these expansions are constitutional and already implied by the existing powers that it has, or whether you feel these are completely new powers which were created as some kind of power grab of the federal government? Again, this is an issue of values not constitutional interpretation. In my view, the government has been granted more power, but I think these expansions were necessary. As the society became larger and encompassed more and more people and more and more territory, a centralized government becomes more important and more necessary. There has to be a body to provide services and keep order as society grows and expands, and the only body that can provide that kind of centralized, top-down leadership that is needed is the government. Who else is going to do it?

Original intent is a load of crap because there is no such thing.

There never was agreement on what precisely the Consistution allows.

The original intent people love to quote Thomas Jefferson who wasn't even in the country when the Consitution was written and originally opposed it. What he eventually did was interpret the Constitution the way he wanted to, which is what everybody does to this day. Alexander Hamilton, who did help write it, had a more flexible and expansionist view.


http://www.law.northwestern.edu/dept...2Koppelman.pdf

Originally Posted by AKA23
Your entire line of argument is just as consistent with the idea that the case was important and Roberts didn't like overruling the legislative branch as it is with the idea that he liked the policy or thought it was important. It's also just as consistent with the idea that he cared about the court's reputation and thought overruling the mandate would sully it. These all make equally as much sense, if we're speculating, except that one of them (the merits of the law) was specifically contradicted in Roberts' opinion.

I'm not sure that you understand how far Roberts went in upholding this law. It is the job of a judge to decide whether a law is constitutional as written. As the dissenters pointed out, Roberts went far beyond that in his opinion. He agreed with the dissenters that the law was unconstitutional as written. Taking one of these issues, he agreed that the Medi-caid expansion was unconstitutional as written, and he took it upon himself to rewrite the statute to be constitutional. He said the way it is written, passed by Congress, and signed by the President, is unconstitutional, but I am going to take it upon myself to rewrite this law so it is upheld. The idea that he did that without considering the merits of the broader policy is, to me, completely unrealistic, and very nonsensical. We do know that the liberals did consider the things that I have written as important, because they have spoken about the importance of these values throughout their history on the Court. As for Roberts, if he thought the law had no merits and was unconstitutional as written, he could and should have struck it down. After all, he had the power to do so. He did not. After all, that was the easiest solution, and according to the judgment of the Court, he was on solid ground in doing so. He didn't do that. This provides some evidence that he saw at least some merit in the law. How much merit, I don't know, but I find it very hard to believe that he would go that far for a law that he saw no merit in whatsoever.

Originally Posted by AKA23
But do you want to make the claim that not being forced to buy health insurance is somehow a civil rights issue on part with racial segregation?

I personally do believe that allowing 50 million of our citizens to have no health insurance is a civil rights issue. The Declaration of Independence guarantees that the US would protect "life, liberty, and the pursuit of happiness." The country was formed to recognize and uphold these values and the Constitution reinforces the importance of these values. If you are poor and have no health insurance, and you therefore are not able to get affordable treatment for diseases, and end up dying because your disease is not caught early enough to be treated, which happens routinely in this country, than yes, I think that interferes with your ability to pursue happiness, to exercise your liberty, and to live your life. The lack of affordable health care is a basic threat to all of these things, so yes, I would consider it on par with other civil rights issues of our time.

Originally Posted by AKA23
Not only that, it's one thing to agree in principal that there should be bipartisan cooperation for large-scale social change, but in my view, it's very difficult to accomplish that change when conservative Republicans never expressed any interest in working with this President. Time and again, Obama reached out an olive branch to the Republicans, and time and again, they refused to take it.
What exactly made it an "olive branch"? He wanted something he knew Republicans were very opposed to, and then offered to work within it, sort of. I'm not sure what makes this a grand gesture of bipartisanship. And when they didn't like it (which he can't have been surprised by), he pushed it through without them.

President Obama started with a basic premise, which is that every one of our citizens should have access to quality and affordable healthcare. He said that he was open to any ideas that would accomplish this goal and would listen to anyone, conservative or liberal, who had ideas about how to accomplish this. The Republicans never presented a plan that would accomplish universal healthcare for every American, or even close to that. Not only that, the Republicans seem not to even believe that this is an issue worth fixing. Yesterday, when pressed by Chris Wallace on Fox News Sunday about whether 30 million people who have no healthcare was a problem, Senator McConnell, who is your leader in the Senate, said "that's not the issue. We're not going to transform our healthcare system to be a Western European system. See, that's the problem with you guys. You don't even acknowledge the importance of the goal. It's not as if Republicans have said, look, Democrats, we believe in this goal too, but we don't think this is the right way to go about it. Here's our more conservative solution to this problem. Take a look. We believe we can accomplish this goal, which we feel is important too, in another way. That I would respect, but your side hasn't done that. They openly admit they have no solution to the broader issue and that in their mind it isn't even a legitimate goal for the government to be pursuing.

Originally Posted by AKA23
The only Republican plan on the table has been health savings account, which in principle are a good thing, but that's simply not going to insure 50 million people who have no healthcare.
Ah, so you're saying President Obama gets to start the discussion with the assumption that it's the duty of the government (the Federal government, too) to make sure everyone has healthcare? Well, geez, no wonder you think Republicans had to be ignored and the legislation had to be shoved through: you're just arbitrarily granting the central point of dispute to the President.

I am shocked that you don't feel that it's an important goal for the government to ensure that everyone in our society has healthcare. Please defend this. How is it fair to have people who can afford to get care live and those who cannot die because we as a society simply don't want to make the sacrifices, and don't think it's important, to accomplish this goal. I can't believe you're seriously trying to defend this.

Originally Posted by AKA23
The Republicans have stated publicly they have no plan to do that, so I don't know how you expect President Obama, or any Democratic leader, to have worked with them to institute a plan that they don't have, especially when they have stated repeatedly throughout his presidency how they would make it their mission to defeat him in every way conceivable.
So you also think that President Bush should have pushed his Social Security reform in 2005 through, too, right? After all, Democrats offered no alternative.

I actually think that President Bush did a good thing by offering up his Social Security reform plan. I disagreed with privatizing Social Security, but I give the man credit for coming up with something that would address the growing insolvency of the system. That was a good thing to do, so if you're asking me should he have been able to get it accomplished, if he had the votes, yes. President Obama had the votes. He pushed through his agenda. That's what we elect a President to do. In my mind, if we don't like what the President has done, than we have the opportunity to vote him out of office the next time around. This obstructionism on both sides that seeks to prevent any President from enacting their agenda is, to me, harmful to the country.

Marbury Vs. Madison was controversial because the Supreme Court with that decision determined a law was unconstitutional and nothing in the Constitution explicitly gave them that power and the strict constitutionalists at the time like Jefferson did not believe the SC had that power. The Supreme Court under Federalist John Marshall expanded its power with that decison, but because he ruled in President Jefferson's favor there wasn't much Jefferson could do about it. So if we were really being literal about original intent, the SC would not be determining what is and isn't constitutional.

I think you misunderstand my position. What you describe may be a situation in which a justice's own subjective values must come into play. My claim was about which side of the debate has more opportunity to engage in this. To the strict constructionist, there will be areas where their own values can play a large role, but others where the Constitution is much clearer (or at least, clearer than in the example above). For the Living Document school of thought, there are bound to be more examples of the former and fewer of the latter. This doesn't seem arguable: the more "interpretable" you think the Constitution is, the more opportunities for interpretation--and therefore, for your own personal views--to factor into the decision.

The more you think is open for interpretation, the more your own interpretation and biases come into it. Ergo, a strict constructionist will generally have their own values factor into decisions less than someone who thinks the Constitution is something they can bend to suit the zeitgeist. Seems pretty unobjectionable to me. Strict constructionists naturally run more danger of never adapting to the times (though whether they should be expected to or not is another question), and "living document" adherents naturally run more danger of creating ad-hoc exceptions and imbuing the law with their own values. It's embedded in the very nature of their position.

So you answer is yes, you do think they were wrong to require that degree of consensus? Because at some point, anyone who supports bending the Constitution as far as it's been bent has to come out and just say that they think it's insufficient for modern times. This tightrope where people suggest it can't account for modern problems, but stop short of saying it's outdated, strikes me as trying to have it both ways.

Also, while it's perfectly true that "interstate commerce" is not explicitly defined, I wonder if you would try to tell me, with a straight face, that you think we're still within any reasonable definition of the phrase? We're certainly well outside the technical definition.

I guess what I'm really asking is this: do you support these things because you think they're actually enumerated in the Constitution, or do you just think that's a way to excuse them without looking like we're violating it? Because it very much sounds like the latter.

No, I'm not taking the polar opposite stance that says there is no degree of interpretation. I'm saying we need to hew a lot closer to the text. You're talking about erring too far and being too strictly adherent, but look at the situation! We're not even close to erring too far in that direction; we err almost entirely in the other direction. And I think that's the system's natural tendency: to always want to bend the rules to meet a problem, even when those rules were designed to take changing times into account. The tendency is to turn every problem into an exception that requires special powers. We have the Constitution for exactly this sort of tendency.

When we're not sure, we should err on the side of less power in fewer hands, because decentralization of power is pretty much the entire goal of the American system. The danger of concentrated power is not an old-fashioned one; it's an eternal one. It will be a danger as long as there are people in positions of authority over other people. Even if you think there are some crisis that the writers of the Constitution could not have anticipated (though, again, the document was obviously constructed knowing this was possible), that's one thing that certainly hasn't changed.

You're kinda getting ahead of me. I'm just asking if the expansion has happened, not if you think it's reasonable or legitimate. It sounds like you're saying it has, yes? That the living document interpretation--rightly or wrong--has vastly expanded the power of the Federal government.

Well, first off, you're assuming the dispute. You just assume we need a "centralized, top-down leader" and ask who's going to do it. But that skips over the actual argument, which is: do we need this? Do we need it so badly that we should expand Federal power that could (let's be honest: will) be used more often and in different ways in the future, too.

But to answer even this very loaded question, what about the States? They can try different approaches without inflicting them on the entire nation. They can adopt different solutions for different types of populations, allowing for both greater customization AND more choice for people who would rather live in one type of state rather than another. If the people of a state demand something, they're probably going to get it. Why can't they elect local leaders that will enact the changes? Why can't they move to a state that does, if theirs won't? Why not give them choices? This is how the country was setup: enumerated powers and "laboratories of democracy." By embracing centralized power, we explicitly undermine both, even though no serious argument can be made that the founders pretty much all thought both were hugely important. These aren't squabbles about whether or not to have a central bank, these are bedrock principles.

You're confusing "original intent" for constructionism. They're not the same thing. The intent that matters for a constructionist is the intent behind the text that actually ended up in the Constitution. The founders didn't all agree about what went in, so "intent" there is indeed meaningless. But there is an intent behind the language that actually went in.

No.

Another breathtakingly insightful post.

You really just need to stop talking.

We're just going in circles now. As I said before, everything you're saying about Roberts is equally consistent with the idea that he's simply reticent to overturn major legislation, not because he thinks it's good, but because he recognize it as significant. It's also totally consistent with the idea that he's worried about the court's reputation. These are two perfectly valid, reasonable theories about Roberts' opinion that explain everything you're saying without having to contradict its statement about the law's merits.

If your position is to ignore these alternatives, which have the virtue of not being contradicted by the man himself, and to speculate as to his real reasons, then I'm not sure there's any point in discussing this further. I'm positing explanations that account for all the weirdness and are still consistent with his own comments at the beginning of the opinion. If you want to say he didn't mean that and posit some other explanation, I really have no way of (or interest in) contradicting that.

You seem to have thought somewhat seriously about law (you're studying it, yeah?), so I hope you already see the problem with this. If you say that the "pursuit of happiness" includes any potential impediment to your happiness, there is no problem, ever, that won't potentially qualify as a "civil right." The Declaration mentions the pursuit of happiness, not its achievement, for obvious reasons: trying to guarantee pretty much anything, nevermind a concept so abstract and fluctuating as "happiness," is a fool's errand, and insanely, blatantly outside of the scope of government the founder's had in mind at the time.

But note my original question: I asked if you thought it was a civil right on part from issues like racial segregation. And I'll throw in another question: do you make any distinction between the fact that the other laws specifically allowed citizens to do something, whereas this one compels people to? Isn't that a fundamentally different kind of judicial review? Do you actually think compulsory health care is so obviously a basic right in the same way racial equality in the eyes of the law is?

Right off the bat, you've changed the claim. Note the first sentence, in which you said the President said every citizen should "have access to quality and affordable healthcare." A few sentences later, you say the Republicans never presented a plan to "accomplish universal healthcare." These are not the same things. Pretty much every politician will tell you the former is a good idea, but a bit more than half of them would disagree with the latter.

They admit that compulsory universal healthcare (and compulsion is the only way you're going to get that, by the way) is not a legitimate goal, and I think they're right. That's different than not having a health care plan. I just linked you to literally hundreds of pieces of legislation. And frankly, even that list isn't entirely necessary; they have no hope of getting any of it passed. Crowing about them not having an alternative, apart from being technically false anyway, is a form of political posturing. The notion that presenting a comprehensive alternative would garner any serious consideration from the Senate, let alone the White House, is patently absurd. The politics matter, but let's not confuse them for policy here.

Have you never met a conservative before? This shouldn't shock anyone who lives outside of a progressive echo chamber. Perhaps your shock comes from the failure to distinguish policies that make healthcare cheaper or more available, and policies that believe government must specifically take it upon itself to make this happen, or to compel people to do so.

I'll be glad to expound on the conservative approach to health care if you like, but it sounds like we have to address the issue on a way more basic level to start.

Because what you are saying is blatantly false.

I'll say it again.

There is no such thing as original intent.


Look it up and you will see.

I am not even going to provide a link because it is obvious.

And yes the information exists that proves it is nonsense.

Did you even read the post? Here, let me bold part of it for you:

Do you even understand what's being said here? It doesn't sound like you do. I'm talking about constructionism, not originalism.

But there wasn't agreement about the meaning of the language.

Just agreement of the words that were used.

Which is the same argument we are having today.

Do you know what constructionism is? Serious question.

Yes.

But you seem to have a problem understanding original intent is an illusion.

Nope. You said earlier that Jefferson didn't even agree with some of the things placed in the Constitution. I was replying specifically to that; I said this was true, but that it had nothing to do with the argument about intent (right or wrong), because that argument is about the intent of the language in the Constitution, not the intent behind anyone involved in its creation. If you want to make the case that original intent is unknowable, non-existence, whatever, that's fine. But your Jefferson example had zero to do with it.

Don't just trawl the discussion looking for keywords that let you inject some prefabricated counterargument, man. Look at what's actually being said.

I didn't say that. I said he didn't like the Constitution at first.

But he reconciled to it by interpreting it in a way that suited him.

Which was true always. The divide between the strict constructionists (Jefferson) and those who thought the Constitution was more flexible (Hamilton) has existed since the beginning. The main authors of it were Hamilton and Madison, the latter Jefferson's ally, and Madison and Hamilton were not politically in agreement.

Suddenly you are bringing up Jefferson, which had nothing to do with what you subsequently said. The point of Jefferson is he is the conservative's go to guy about how to interpret the Consitution when his opinion is no more relevant than anyone else as he was not involved in writing it.

The Constitution is a compromise document. The clash between how to interpret the Constitution was essentially won by the Jefferson school of thought in the 19th century and Hamilton's view has triumphed since the middle of the Twentieth Century.