A Constitutional Question

by Don Boudreaux on June 16, 2011

in Law

In response to this post about Uncle Sam’s bribes paid to the government of Brazil, my friend Reuvain Borchardt (Fordham Law, ’10), as well as commenter “hamilton,” challenge my suggestion that these payments to Brazil are unconstitutional.

They might have a valid point.

My initial thought is that the U.S. Constitution does not authorize Uncle Sam to tax Americans in order to acquire cash used to buy (allegedly) desirable commercial policies from foreign governments.  Would it be constitutional, for example, for Uncle Sam to subsidize the building of steel factories in Thailand if Congress determined that such factories would redound to the economic benefit of Americans?

But on second thought perhaps the Brazilian cotton bribes do, arguably, fall under the meaning of “to regulate Commerce with foreign Nations.”

I’m not at all sure that such payments would have been recognized by the framers as falling within the meaning of that clause.  But I’m not sure that they wouldn’t.

What do you think?

Either way, of course, the fact that a majority of the members of the House (including a majority of the GOP members) voted to keep most farm subsidies in place is itself sufficient evidence that these members of Congress take seriously neither their oaths of office nor their proclamations that they are in Washington to help reduce the size and power of Uncle Sam.

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{ 91 comments }

John Hall June 16, 2011 at 5:24 pm

I thought Ken’s reply on the original post is a valid critique.
I don’t dispute their power to tax, but I see the power to regulate foreign commerce as more limited.

I suppose I wouldn’t have a problem with it if it were required as part of a treaty, like if the WTO said we had to do it or something.

Rob June 16, 2011 at 5:34 pm

Actually….in this case, the US response to Brazil was meant exactly to appease Brazil at the WTO. US cotton subsidies have routinely been found in violation of WTO principles. Brazil successfully challenges the US in Geneva and, after a final loss in the appeals process, the US proposed the subsidy to Brazil in order to get them to stop complaining. NPR had a good story on this late last year.

Dan J June 16, 2011 at 6:59 pm

To stop brazil from imposing high tariffs on US, our govt sent tribute. Brazil was proposed 100% tariffs on intellectual property, to start. Brazil won a monetary settlement from the WTO courts.

kyle8 June 16, 2011 at 6:26 pm

Agricultural subsidies are the absolute nadir of economic tomfoolery. They are harmful in so many ways. I researched and wrote a blog story about it several years ago and nothing about it has changed.

If anyone wants to see it, it is here.
http://impudent.edublogs.org/page/2/

hamilton June 16, 2011 at 6:40 pm

Which is all well and good, but whether they are an economically sound policy has nothing to do with whether they are constitutional.

kyle8 June 16, 2011 at 6:58 pm

True, but I really do not find in the constitution the power of the Federal government to take taxes from one group of citizens and give it arbitrarily to another group.

I know that is the basis of our entire structure, but it does not mean that it is constitutional.

Mao_Dung June 16, 2011 at 6:32 pm

I wear women’s underwear. Subsidized cob corn is in my night stand.

The Troll June 17, 2011 at 11:08 pm

ok this one was not me

Ken June 16, 2011 at 6:32 pm

I think a lot of hinges on what you think regulate means. I do NOT think directly redistributing wealth falls into the definition. I think it generally means basic quality control and assignation of liability for product failure. Many people are comfortable with wealth taking and redistribution in the name of regulation, but this also using the term “to regulate” in a very non-traditional way.

I think the constitution was written to take a narrow view of definitions and power authorization, rather than an expansive view. Get expansive enough, as seems to be evident during the Kagan confirmation where she declined to accept any limits to the federal government, and the constitution loses it’s meaning.

Regards,
Ken

vidyohs June 16, 2011 at 6:38 pm

The word regulate like the words general welfare(“if Congress determined that such factories would redound to the economic benefit of Americans) will be interpreted by pretty much by every one in the manner most advantageous to the individual doing the interpreting.

While an argument may be made that the bribe to Brazil is constitutional, if one interprets the word regulate and the words general welfare in the broadest manner possible: I would rather think that President Jefferson set the tone and pattern for all future regulation with foreign governments regarding bribes (tribute) to do business when he said, “Millions for defense, not one penny for tribute(bribes).”

Did President Jefferson and his Congress misread the constitution then? Most of them probably helped write it.

The acts of bribing and subsidizing is just another example of the willingness to sell their souls to buy another vote.

People, the USA does not have manufacturing problem, it has a government problem.

People, the USA does not have a business or market problem, it has a government problem.

Get it through your heads, the government is the problem. To any question and any circumstance the answer remains the same.

Dan J June 16, 2011 at 7:08 pm

Courts rely on precedence and current legislation. Legislation would have to be passed that reasserts the meaning of the commerce clause and then a challenge defeated by conservative and Originalists at the SCOTUS. Then, until a court full of Sotomayors, the ruling would remain. We all know the leftists will find in favor of left leaning agendas with little regard for law or precedence. Furthering the progressive agenda is priority number 1.

Sam June 17, 2011 at 12:41 am

As it is with rightists. SCOTUS is a political organization.

Dan J June 17, 2011 at 12:51 am

Really! Notice how the ‘conservatives’ in the SCOTUS will find in favor on semi left leanings but the nutty leftists will never….NEVER……. Find in favor of constitutional law if it contradicts progressive agendas.
Hell, SCOTUS had opportunity to destroy lefties abuse of commerce clause in fall of 2009 as a case was brought to them which would have overturned the Wickard V. Filburn case. That case needed to be overturned. It gives govt the right to tell you whether you can even grow your own food and/or give some to your neighbor. The ‘Conservative’ court would not hear the recent attempt to overturn it.

Ron H. June 17, 2011 at 4:05 am

Sorry, the above was intended for Dan J.

Ron H. June 17, 2011 at 4:07 am

Oops! Please ignore that one.

Ron H. June 17, 2011 at 4:04 am

Legislation would have to be passed that reasserts the meaning of the commerce clause and then a challenge defeated by conservative and Originalists at the SCOTUS.

Do you perhaps mean a constitutional amendment? Congress can’t legislate changes to the Constitution.

Dan J June 17, 2011 at 10:45 pm

Don’t need Constitutional amendment to reassert an intent of commerce clause. Wickard V Filburn needn’t an amendment to overturn.

hamilton June 17, 2011 at 11:51 am

“Did President Jefferson and his Congress misread the constitution then?”

That wasn’t a Constitutional claim. That’s a political position. There’s nothing inherent in Article I that prohibits using tribute and requires using defense.

hamilton June 16, 2011 at 6:47 pm

“Either way, of course, the fact that a majority of the members of the House (including a majority of the GOP members) voted to keep most farm subsidies in place is itself sufficient evidence that these members of Congress take seriously neither their oaths of office nor their proclamations that they are in Washington to help reduce the size and power of Uncle Sam.”

It’s pretty clear to me that maintaining farm subsidies does not “reduce the size and power” of the federal government, but how is it unconstitutional? I’m not asking to be a jerk, I’m trying to understand how you see the Constitution.

Dan J June 16, 2011 at 6:56 pm

I believe it is unConstitutional. But, as the commerce clause has been used to give the federal govt the power to regulate as much as it has, it would be found Constitutional by most courts today.
A Judge Andrew Napolitano may find it unConstitutional along with two sitting Originalists on the SCOTUS, but precedence has already been set. Lower courts will find it legal, while the SCOTUS would pass on the case. Congress already tries to subvert it’s duties to the judiciary and this one would have too much impact for the SCOTUS to deal with.

PLM June 16, 2011 at 6:58 pm

Correct.

vidyohs June 16, 2011 at 7:05 pm

I would reverse and ask you, sir, how you see it as being constitutional or possibly constitutional? Do you interpret the word regulate (in definition of intention) to include bribing? How does bribing make things regular? The only way we could get there, making things regular, with a known bribe laying out on the table would be for there to be an equal quid pro quo bribe from the Brazilian government on the table as well. Is there?

Somehow, I can’t see that interpretation holding water.

vidyohs June 16, 2011 at 7:06 pm

Bah humbug, need edit function.

In parens should be (in definition or intention). Thank you.

hamilton June 17, 2011 at 11:55 am

I don’t know what was meant by “regulate” in 1787, but an interpretation that appears consistent with actions taken between 1787 and today (including pre-20th century actions) is that regulate means “control or supervise by means of rules and regulations”. So Congress clearly has the power to control international trade by means of rules. The President and the Senate have the means to enter into treaties, including multilateral treaties such as the WTO. And Congress has the power to tax. So which of these powers, used in combination, is violating which provision of the Constitution?

I’m not even suggesting that we take up the idea of changing interpretations or subsequent court rulings. Using just the explicitly listed delegated powers in the Constitution, it does not seem to me that the Brazilian payment is unconstitutional.

Dan J June 17, 2011 at 10:49 pm

And, unfortunately, by means of commerce clause, it is easy to see how govt can ( by perversion) regulate inactivity of commerce, thereby regulating an individuals decision to not participate or pull one’s resources from commerce.

mitt romney hater June 16, 2011 at 6:50 pm

John Hall: I don’t think a treaty can give Congress the power to do anything if it does not already have that power in the Constitution

kyle8 June 16, 2011 at 7:01 pm

True, and the government was set up bu the citizens, it’s authority derives from them, therefore it cannot grant any right they do not have.

Do we, as citizens have the right to confiscate the property of our neighbor to distribute to others? Then neither can the government have that right>

vikingvista June 19, 2011 at 7:11 pm

Plenty of the citizens then, and all of the citizens since, did NOT set it up. Its authority derives from its army of enforcers.

PLM June 16, 2011 at 6:57 pm

Based on the comments, it seems that the question is not, “Is this constitutional according to modern jurisprudence,” but rather, “Is this constitutional according to my Conservative reading of the constitution.” I happen to like Conservative readings of the constitution, but it is undoubtedly constitutional from a legal theory standpoint.

kyle8 June 16, 2011 at 7:04 pm

If it is wrong, then legal theory is wrong. It is right, not because of any constitutionality, but because of that age old nostrum. Might makes right.

Our leaders long ago conspired to insert into the constitution any damn thing they want to do.

Gil June 16, 2011 at 10:08 pm

FTW!

DMXRoid June 16, 2011 at 6:59 pm

I can’t think of a single reason why this would be unconstitutional given current Constitutional jurisprudence. The concept of the Constitution as a document that provides a limited and explicit set of powers to the branches of government has been replaced with one that provides an explicit set of things government can _not_ do (violate one’s freedom of speech, or right to bear arms, etc…) and things that government _must_ do (guarantee the equal protection of the law to all citizens). Everything not forbidden is fair game, and really, given the behavior of government and the willingness of courts to defer to legislators, even some things that are forbidden are going to be tested (gun regulations, speech restrictions, violations of privacy, etc…).

And really, if anyone went to court over the question Don raises, it’d be answered by the government (both by the attorneys for the gov’t and the judges) in the same way that all questions are: anything that affects interstate commerce is fair game. If growing medical weed for personal use, or wheat for personal consumption, are legitimate areas for government to regulate and interfere with, with no restrictions on the kind of interference or regulation except those expressly forbidden by the Constitution, in what world would Brazilian disposable income NOT in some minor way affect interstate commerce?

Dan J June 16, 2011 at 7:15 pm

Libertarians, Conservatives, Originalists, etc.,…. Would lose a case in court. The loss would then further set judiciary precedence fit the next case, should it be brought. You have to win at state and fed. Congressional level with legislation first. Unlikely? Yep! Impossible! Nope!

vidyohs June 16, 2011 at 7:56 pm

“Everything not forbidden is fair game, and really, given the behavior of government and the willingness of courts to defer to legislators, even some things that are forbidden are going to be tested (gun regulations, speech restrictions, violations of privacy, etc…).”

Everything not forbidden is fair game? Ignorant people may believe so, and gullible people may allow it to be so; but factually it is wrong.

The way the constitution says it is, “Anything not granted, is forbidden.” See U.S. Constitution, 10th Amendment.

Observer_Guy1 June 16, 2011 at 7:26 pm

How would you classify foreign aid? Or payments to the United Nations? Name a country on earth completely devoid of American dollars? Seems to me Congress can appropriate money for just about anything it wishes.

Mao_Dung June 17, 2011 at 3:28 am

Troll.

Dan J June 16, 2011 at 7:45 pm

I would argue the ‘payments’ as Tributes and Bribes to try and stop them or to get public opinion on my side for threatening elected officials to legislate it’s end.

Dallas Weaver June 16, 2011 at 8:03 pm

What is new about using tax payers money to help someone in some other country? I remember when I was contacted by USAID to design an aquaculture facility that they were funding in Sri Lanka. I did meet the final owner at of that facility in LA at one of my customers when I was delivering product.

The big difference is that my business was a small niche business, but cotton is big.

James Hanley June 16, 2011 at 8:11 pm

The idea that the Constitution only means what the Founders thought it meant is one of the most seductive, but ultimately most adolescent, ideas in American politics. It is ultimately a desire for an authoritative, unarguable, interpretation of the document. It is the wish of an infant who needs an unquestionable parent.

It is also anathema to any thoughtful libertarian, I would argue, as many of the Founders would found coercive religion in schools perfectly acceptable (Madison and Hamilton being notable exceptions), all would certainly have disallowed same-sex marriage even had they lived to see the 14th Amendment (and none of the 14th Amendment’s ratifiers would have supported same-sex marriage), and under our second president Congress passed the Sedition Act, thinking them allowable under the First Amendment. They also had very minimal standards for due process, compared to today. Obviously not all the interpretive changes in constitutional history are favorable to libertarians, but on balance liberty hasn’t done that badly.

And so we come to a word like “regulate,” and it’s naive at best to assume there is a single clear meaning, that all the Founders would have agreed on that meaning (more likely they settled on a vaguer word so they could come to agreement, rather than try for more specific phrasing on which they could never have agreed), or that it’s not appropriate as a matter of constitutional theory for us to still be working out what the clause properly means. (And if we do want to insist on an orginalist position, I’d be pretty damned sure that Hamilton, one of the authors of the Federalist Papers, would wholeheartedly support the constitutionality of the law, even if he might not support it as public policy.)

There’s also the fact that Congress has authority over tariffs, and then we can’t avoid the necessary and proper clause, which (often uncomfortably, at least for us libertarians) expands the power of Congress beyond the explicit words of Article 1, section 8. Even if we came to agreement that “regulating” commerce does not provide the power to tax in order to pay a country not to impose tariffs, we’d have to ask whether the power over tariffs and the necessary and proper clause would ultimately allow Congress to do so. And that answer is going to require considerably more analysis than anyone is likely to achieve in a comment here (including myself).

I wholeheartedly agree this is a bad policy, and am glad it’s been ended. And I could possibly be persuaded that it’s not within Congress’s constitutional powers. But that argument is far from as straightforward as an ideologically motivated interpretation of the word “regulate” would suggest.

Although I am myself more favorable toward that ideological position than any other, I’ve studied constitutional law enough to know that by itself it’s an insufficient basis on which to make claims of constitutional meaning.

Gil June 16, 2011 at 10:13 pm

Anyone who would argue the government has no business in anything would to, by extension, disregard all Constitutions.

Ken June 16, 2011 at 10:55 pm

Gil,

Since no one’s arguing that, this is a nothing comment.

Regards,
Ken

Ken June 16, 2011 at 10:44 pm

James,

“The idea that the Constitution only means what the Founders thought it meant is one of the most seductive”

This is mainly jackassery. It isn’t hard to discern what is meant by the written word. Much of the confusion surrounding the constitution is Orwellian contortions people do to the english language in order to get their own way.

” It is the wish of an infant who needs an unquestionable parent.”

More jackassery. It is definitively not infantile to insist that words have real meaning.

“And so we come to a word like “regulate,” and it’s naive at best to assume there is a single clear meaning”

This is the type of thing people say when they are about to say something outrageous like “if this country is free, why does it cost so much to live here”. It’s a clear equivocation. Almost no word has a single clear meaning. But they have a clear enough meaning. Acting as the fact that it doesn’t have a single clear meaning means you can interpret it to mean whatever you want is just dishonest.

“And if we do want to insist on an orginalist position, I’d be pretty damned sure that Hamilton, one of the authors of the Federalist Papers, would wholeheartedly support the constitutionality of the law, even if he might not support it as public policy.”

I’m sure if we made a list of all the bad things the founders did and thought, it would be a nearly exhaustive list of every bad thing men are guilty of. After all they were just men. What made them so extraordinary is that they understood their own weaknesses, as they are inherent to us all, and created a document as clearly written as any in existence and manage to pack so much wisdom in it. Wisdom they all agreed was wise. Listing things one thought or wrote that most others disagreed with is easy. It’s much harder to find something with which they all basically agreed. Much of that is in the constitution.

“Even if we came to agreement that “regulating” commerce does not provide the power to tax”

Since the words have two different meanings and the fact that the constitution lists collecting taxes and regulating commerce as two distinct powers, the agreement has all ready occured.

Regards,
Ken

Gil June 17, 2011 at 12:55 am

It doesn’t matter “what the Founders thought” – they’re long dead and the Constitution has been further amended. Hence there was a time when an income tax would be unConstitutional but with the passage of the 16th Amendment it is now Constitutional. On the other hand, if you are willing to say the Founders were wrong when they thought slavery was A-OK and such intent is not valid in interpreting the Constitution today then you should be willing to admit that “appealing to the Founding Fathers” is a type of argument fallacy.

Dan J June 17, 2011 at 1:06 am

Great… I hereby find that the Right to Bear Arms means I have the rite to a Grizzly Bear Arms. Who cares what cracker racists of the 1700′s thought? I Say it now means Grizzly Bear Arms and govt must provide me and millions of other with them. Don’t give me crap about extinction…… I want my bear arms.
You work for the auto union or SEIU? That or you are a Kalifornian? Only they are that asinine.

Gil June 17, 2011 at 4:25 am

To quote Ken:

“Since no one’s arguing that, this is a nothing comment.”

I’m sure Libertarians would be quick to say the right to gun ownership or bear ownership should be the right of anyone who seeks it and it doesn’t matter what the 2nd Amendment means or is supposed to mean because governments and their constitutions are illegitimate.

Ken June 17, 2011 at 11:47 am

“I’m sure Libertarians would be quick to say the right to gun ownership or bear ownership should be the right of anyone who seeks it and it doesn’t matter what the 2nd Amendment means or is supposed to mean because governments and their constitutions are illegitimate.”

You’re awfully sure of something that would be wrong.

Regards,
Ken

Dan J June 17, 2011 at 10:52 pm

I am following your line of reasoning. Only a leftist would want it all different ways. Either the Constitution means as was intended by authors or we parse and pervert it into any meaning we choose.

Gil June 18, 2011 at 12:33 am

Come on Ken, I’m sure if the Government gets to the stage where it interprets the 2nd Amendment to only those in the National Guards, police and military can have guns and everyone else can’t own gun and must hand them all in for destruction then it’s time to fight the government or get the hell out of there before you’ll find yourself starving in a concentration camp.

Ken June 17, 2011 at 2:25 am

“It doesn’t matter “what the Founders thought” – they’re long dead ”

Seriously? When the people who pass a law die, no one is obligated to follow it? Now that the people who wrote the 13th amendment are dead, we can now reconstitute slavery, amaright?

” the Constitution has been further amended.”

So? In order to understand what those amendments mean, we need to think about the original intent of those amendments. In other words, ask why those amendments were added to the constitution. It’s important to know if they were designed to modify another part of the constitution, or add to it.

In other words, you’re entire comment shows what a moron you are.

Regards,
Ken

Gil June 17, 2011 at 4:22 am

Gee would you take the same consideration for the 16th Amendment? Or would simple say that the income tax is wrong and the 16th Amendment is wrong and those who framed that Amendment were wrong and there should be a new Amendment to nullify it?

Ken June 17, 2011 at 11:48 am

Gil,

Until it is nullified, it is still constitutional. The questions on this thread aren’t right and wrong, they are questions of constitutionality. Changing the subject to win an argument is the very definition of straw man.

Regards
Ken

Dan J June 17, 2011 at 12:16 am

Do you know why they are looking to I pose tariffs? The whole damn thing is self defeating. Subsidize crops to prop up pricing since the newest global economies are doing it for lesser pricing and then give those countries money to pay for their losses from our subsidizing of our crops. Just end it all.
And, some constitutionals you are to assume the founding fathers intended or a limited govt to not really be that limited and do anything, including violating the Bill of Rights via the commerce clause.

Dan J June 17, 2011 at 12:53 am

Damn I-pad…… Spell check replaces my words with others…

Peter June 16, 2011 at 8:51 pm

The word “regulate” as used in the Constitution only ever meant “to put in place tariffs and subsidies, should they exist at all.” In that sense, I do think what the government is doing in Brazil Cotton Extravaganza is totally Constitutional, because it completely meets the definition of the word “regulate.” That does not mean it’s a good idea, but it is Constitutional, much like Congress printing money and fixing its value on a bimetallic system with an arbitrary gold to silver price fix. Totally Constitutional. Not a good idea.

mitt romney hater June 16, 2011 at 9:37 pm

I am not discussing the Constitution as it has been bastardized since the New Deal. I am talking about originalism, ie. interpreting the Const. as it was meant at the time it was drafted

Gil June 16, 2011 at 10:15 pm

That makes about as much sense as determining what the original meaning of the Bible is supposed to be. Not to mention by your definition that you are reading the U.S. Constittution to have ten amendments.

Ken June 16, 2011 at 11:01 pm

Gil,

Is your argument that the constitution is really old and has been amended so much no one can determine the purpose or intent of the constitution?

Why do you think it’s as difficult to determine the original meaning of the constitution, a document written in english at a time from which we have tons of other source documents to understand the context, as it is to understand the Bible, a book written over hundreds, if not thousands, of years in many different languages at time from which there are very few source document from which to understand its context? Is it just so you can say you don’t like the original intent, so like a good Orwellian say the original intent can’t be discerned?

Regards,
Ken

Gil June 17, 2011 at 12:44 am

No I’m saying Constitution-ophiles can draw a line when the newer amendments don’t apply because they don’t like them. Hence many Libertarians talk of the True Constitution having ten amendments the rest are bunk. Furthermore, they would say that the income tax is unConstitutional because it’s not their view of the Constitution and it wasn’t in the earlier Constitution and as such income tax is wrong because people in the late 1700s and early 1800s didn’t put it in there.

Dan J June 17, 2011 at 1:02 am

The 18th amendment was once the newer amendment. We should go back and keep the prohibition on alcohol?

Ken June 17, 2011 at 2:32 am

“No I’m saying Constitution-ophiles can draw a line when the newer amendments don’t apply because they don’t like them.”

Who ever said that amendments they don’t like don’t apply to them? I certainly never did. You’re projecting your feelings onto me. While I don’t support the 16th, it is still a valid part of the constitution, a document I have sworn on a number of times to uphold, including the parts I don’t like.

” Furthermore, they would say that the income tax is unConstitutional because it’s not their view of the Constitution and it wasn’t in the earlier Constitution”

Again, bullshit. The founders wrote in the amendment process for Christ’s sake. They never said they would only accept what they put down. They even implemented a process to change the constitution, you idiot!

Your entire comment is based on faulty assumptions, i.e., a straw man.

Try a little thinking first. You won’t sound so stupid.

Regards,
Ken

Gil June 17, 2011 at 4:30 am

* facepalm *

To Ken:

That the point isn’t it? What did the Founders want? Well not the income tax because it came later. However since the Constitution has 27 Amendments then why care “what the Founders thought” when there were 10 Amendment? Hence a lot of debaters go back to “what the Founders want” when the modern interpretation doesn’t agree with the debater but the ye olde interpretation might.

Ken June 17, 2011 at 11:56 am

Gil,

“That the point isn’t it? What did the Founders want?”

No. It’s the meaning of the constitution, the foundation of federal law. In case you didn’t notice that includes the amendments. The reason people talk about the founding fathers when talking about the commerce clause, dumbass, is because they put it in there and no amendment has been created to modify it.

What anyone meant when drafting any part of the ratified constitution is important because that’s what gives it meaning. The purpose of a clause of phrase in any part of the constitution can only be understood in the context in which it was written. That means figuring out what the authors of any part of the constitution meant is important. Since the founding fathers are still responsible for the bulk of the constitution, including the commerce clause, it’s important to understand what they were thinking when they wrote and ratified a part of the constitution.

Regards,
Ken

tdp June 17, 2011 at 11:07 pm

I don’t see what your point is. Nobody is trying to turn the clock back to 1787, which seems to be your fear. If I am correct, you are conflating Originalism with support for slavery, the disenfranchisement of women and blacks, and other injustices many founders had no objection to when they drafted the Constitution. The argument Don and others are making is that nowhere in the Constitution or its 27 Amendments is there anything giving Congress the authority to subsidize agriculture or industry. You may or may not agree with that, but it does not mean that Libertarians pick and choose parts of the constitution to respect or ignore. Your objections to originalism are also baseless. Any problems with the Constitution as it was originally intended can be fixed with Amendments, which are provided for under the original constitution.

Dan J June 17, 2011 at 12:32 am

Never heard of Federalist Papers? How about the letters written between Jefferson and Adams? There are a ton of documents from which to sift thru and come to a complete understanding of the intent of Constitution and all of it’s written word.
One of the purposes of a ‘commerce clause’ was to have the ability to keep commerce (economic activity) freely flowing. A fear was to have states enacting tariffs between each other to protect industry within their state or as retribution, just as nations do today. Then, of course we got that very thing leading up to the Civil War.
Protectionism of Northern state textiles from Southern states textiles, who would use black labor, mostly slaves, keeping the costs much lower.
Commerce Clause designed intentions was to keep commerce regular. They used this, perversely, for the whole lightbulb scam. A few states, California, wants to enact regressive legislation. As some states have few legislation and nutty lefty states want legislation to put us back in horse-and-buggy, leftists used the argument of setting a federally restrictive standard so as to not have a ‘patchwork of standards’ making manufacturers deal with 50 different states standards.
Of course, this argument is bogus. Sounds good. But, it is really to get the other states in line with more restrictions and to have other states pay for the costlier standards one ,or two, leftist states want.

Gil June 17, 2011 at 12:45 am

Who cares what the intents of White men in the late 1700s were?

Dan J June 17, 2011 at 12:58 am

Idiot! Without them you are living as subjects of GB. And, there is no way to count on GB having evolved from their oppressive ways back then to less oppressive now.
What nation…. What ethnicity…. What gender…. What religion … What continent ….. Does not have slavery, indentured servitude, serfdom, in their recent histories?

Ken June 17, 2011 at 2:33 am

“Who cares what the intents of White men in the late 1700s were?”

Why care about the intents of any man of any race of any time in history?

Jesus, you really are a dumbass, Gil.

Regards,
Ken

Gil June 17, 2011 at 4:36 am

LOL Dan J! You sounds like Homer Simpsons defending gun rights against Lisa by shouting “you don’t King George III pushing around, do you!? Well do you!? Do you!?” After all, other British colonies and Britain itself followed a rather similar path as the U.S.A. as the 1800s were fairly laissez-faire for the West. Not to mention slavery was simply eneded in the British Empire in 1833 through legislative fiat than a war. Most Libertarians complained that had not the Civil War been fought then both the U.S.A. and the C.S.A. would have been better off and the war was simply about maintain the Union at any cost than freeing the slaves or maintain freedom for everyone.

Gil June 17, 2011 at 4:48 am

* roll eyes *

I find it problematic not in the quaint history lesson sense but because some think the historical mind-reading will stand up in court. Last time I looked lawyers examine the words of contracts and their meanings and not the intent of the writers. Hence people may accidently screw themselves when they create contracts using words with open-ended meanings and thus people are advised to seek professional advice when drawing up legal contracts. For example, “reasonable”, “fair”, “general welfare”, “well-regulated’, etc.. Such words mean different things to different people and will be interpreted by the courts in different eras.

Ken June 17, 2011 at 12:00 pm

“historical mind-reading”

Historical mind-reading is unnecessary. The authors of all parts of the constitution left plenty of reading material around to clarify the intentions of whatever part of the constitution in which you’re interested.

Without those “quaint” history lessons you’re arrogantly dismissing your thoughts are weakened because not only do you not know, but you actively refuse to know, the REASONS for the passage of a law or ratification of an amendment or the constitution itself. You foolishly think you’re self contained and have no need to reference anything else except for your own mind. In other words, your defenses here are the defenses of a child.

Regards,
Ken

Dan J June 17, 2011 at 10:54 pm

Again…. Where are my grizzly bear arms?

Dan J June 17, 2011 at 11:00 pm

@ Gil
I look to reason at same level as that with whom I am in disagreement. With you, it would seem as though I must go with a ‘Homer’.
How ludicrous to assert ‘who cares what dead white men thought?’.
Oh, I don’t know because they were very knowledgeable. As opposed to entitled men of all ethnicities whose biggest complaint is that they don’t have what their neighbor has.

Gil June 18, 2011 at 12:39 am

How about this Ken:

Thomas Jefferson wrote: “no freeman shall ever be debarred the use of arms”. That’s mean no gun for slaves, women and children. So do we start disarming women and children because that’s what Thomas Jeffferson thought?

Dan J June 18, 2011 at 12:42 am

‘MAN’ or ‘MEN’ has always been used to mean people.

Ken June 18, 2011 at 12:47 am

Gil,

The constitution is pretty clear when it says ” the right of the People to keep and bear arms shall not be infringed.”

Regards,
Ken

Dan J June 18, 2011 at 2:26 am

Thats right! Grizzly bear arms.

Dan J June 18, 2011 at 2:28 am

Debarred the use of arms…… So govt cannot restrain me and keep me from using my arms. Straight jackets are unconstitutional.

Gil June 18, 2011 at 4:41 am

How about this Dan J – if the Constitution has to read with a 18th century dictionary then the 2nd Amendment only allows people to own weaponry that existed in the late 1700s/early 1800s.

Ken June 18, 2011 at 5:09 pm

Gil,

For the second time, the second amendment reads ” the right of the People to keep and bear arms shall not be infringed.”

It doesn’t use the word ‘man’ or ‘men’. It uses the word ‘People’ an extremely inclusive term.

It also does NOT “to keep and bear arms made in the 18th and 19th century”.

In other words you have suffered a reading comprehension fail. We all get that you hate the second amendment and are looking for any excuse to interpret it in any other way than it can be rationally understood.

Regards,
Ken

vidyohs June 16, 2011 at 9:44 pm

“The idea that the Constitution only means what the Founders thought it meant is one of the most seductive, but ultimately most adolescent, ideas in American politics. It is ultimately a desire for an authoritative, unarguable, interpretation of the document. It is the wish of an infant who needs an unquestionable parent.”

On the face of it that sounds just so intellectual, and is phrased so completely in muirduckian, and is so much dross, chaff, meringue, pond scum thinking. God I love to hear from so those bright so above us all. Of course there does not have to be rigid standards for a society to progress, no no we can all just adapt to the standards we make up on the spot and impose through superior strength on our neighbors. I think that is called chaos, is it not? Rigid standards a base for all law……..pshaw common people of course not, that kind of desire is just infantile, adolescent at best.

As Walter Williams says, “want to play living rules poker with me, and I get to go first?”

Now this next is just too ridiculous for words.

“And so we come to a word like “regulate,” and it’s naive at best to assume there is a single clear meaning, that all the Founders would have agreed on that meaning (more likely they settled on a vaguer word so they could come to agreement, rather than try for more specific phrasing on which they could never have agreed),”

My Webster’s has several definitions for the word regulate, and they all lead us to the same conclusion, a non-changing standard. There isn’t a whole hell of a lot of room for interpretation there.

So it is naive to expect that the standards in regulations not be flexible or open to interpretation. How do you feel about the metric system, is it naive to expect that a kilometer today remain the same actual distance tomorrow?

Oh well, you say, that is different! But, is it really? Regulations in commerce are meant to standardize activity so that one expectation today will remain the same tomorrow and thus plans for business, manufacturing, trade, and communal living accomplished without having the rug swept out from under each of us by the dominant thug in the arena. Without the standardization of regulations none of us could even determine whether the person we are dealing with honest, there would be no standard by which to legally gauge honesty.

You sir, claim a respectable grasp of constitutional law, yet come across as a typical looney lefty with your lean towards the “living” nature of the constitution. But, what the hell, let’s go for the chaos, right?

It is true that the founding fathers did not expect their work to remain unchallenged by a future they could not see, yet they also recognized that everything I said above about standards were absolutely necessary. So, they wisely allowed for that and inserted the instructions for changing the constitution should the need be dictated by future evolution of our society, it is called the Amendment process. Heard of it, amigo? It is a process that allows for the constitution to change but under much debate, serious consideration, and then majority approval.

But all that is by-the-by, because as to the debate at hand, congress can do what ever the hell it wants to do because the constitution gives them permission in Art 1, Sec5, para 2, 1st phrase “Each house may determine the rules of its proceedings,” and, for the life of me I can not think of one thing that can not be claimed to be necessary to the proceedings of congress should the congress decide that it is so, including bribing Brazil.

Mark Bahner June 16, 2011 at 10:07 pm

Considering that the vast majority of programs the federal government spends money on are blatantly unconstitutional (Social Security, Medicare, Medicaid, Department of Education, Energy, etc. etc.) I’m inclined to cut them some slack on something that could reasonably fall under “regulate commerce with foreign Nations.”

W.E.Heasley June 16, 2011 at 11:27 pm

“Subsidy” and in particular government subsidy boils down to what Milton Friedman succinctly stated in his 1955 essay The Role of Government in Education:

“In a private market economy, the individual would get this return [from investment] as his personal income [increased income], yet if the investment were subsidized, he would have borne none of the costs”.

brotio June 17, 2011 at 12:49 am

This quote from Ben Franklin seems appropriate:

“The ordaining of laws in favor of one part of the nation, to the prejudice and oppression of another, is certainly the most erroneous and mistaken policy. An equal dispensation of protection, rights, privileges, and advantages, is what every part is entitled to, and ought to enjoy.” – Benjamin Franklin, Emblematical Representations, 1774

Seth June 17, 2011 at 4:55 am

I would think this would be these would be the appropriate definitions of “regulate” in this case:

“to control or direct by a rule, principle, method, etc.: to regulate household expenses.”

“to govern or direct according to rule”

“to bring under the control of law”

I find it hard to get “to pay” from these.

Curt Doolittle June 17, 2011 at 8:58 am

I think that the constitution is so weakened in the minds of the people that government is limited only by the threat of riot and armed rebellion.

And I’m only exaggerating a little bit.

mitt romney hater June 17, 2011 at 11:04 am

Gil: “at the time it was drafted” means each part of the Constitution, whether it is the original Const. or the Bill of Rights or the other Amendments, should be interpreted by its meaning at the time of its drafting. No, the “original meaning” does not mean to disregard the subsequent amendments. and btw you are wrong, the first ten amendments were no adopted with the original constitution. That is why people like George Mason refused to sign the Constitution

Larry Glenn June 17, 2011 at 12:24 pm

Pertinent to the enforcement clauses of the WTO Treaty, Dick Armey once noted the problem with them was that the treaty was a free trade agreement written by protectionists. He suggested the enforcement clauses creates moral hazard because they provide protectionists with an incentive to bring action against supposed “dumpers” or other purported villains. If they win, they get to employ a protective tariff to punish the guilty nation and in the process impoverish their fellow citizens. He indicated he would have preferred to have awards made in cash transfers from country A to country B when the former was found not to be in compliance and have such bounty continue until country A comes into compliance. He determined that would never pass Congress so we have what we have. I would suggest that for all its faults, the treaty has been of benefit to us all.

BonnieBlueFlag June 17, 2011 at 9:38 pm

Depends on the Founding Father. Alexander Hamilton would have said yes, but Jefferson would have said no.

tdp June 17, 2011 at 10:56 pm

News flash everybody: Congressmen are POLITICIANS. Politicians care about getting reelected and enjoying their perks. Maintaining farm subsidies helps to keep politicians reelected, and to 90% of politicians, what is good for reelection or increases their power is more important than what is good for the country.

Scott June 19, 2011 at 10:09 am

What’s the difference between subsidies and tariffs except that tariffs are a little more overt and subsidies are more subtle?

While I would prefer tariffs, I have no problem with subsidies as a substitute for tariffs particularly for industries that I consider critical to national security, agriculture being one of those. We must attempt to gain advantage for American enterprises wherever possible because if we aren’t actively gaining advantage, other countries are. We do not live in a utopia nor will we ever.

Killing subsidies on American agriculture will reduce comparative agricultural capacity.

Manny Fresh June 25, 2011 at 12:39 pm

So I guess you’re basing your legal analysis on the No Subsidies for Foreign Governments Clause of the Constitution? I missed that day in Con Law. The federal government’s power in foreign relations is broad. So are the taxing and spending powers. (Sidenote: you know the federal government gives these subsidies all the time right? Pakistan?). A challenge to a subsidy like this would probably never see the light of day in any federal court (damn sure not the Supreme Court) because there’s pretty much no taxpayer standing. Really the only way to challenge such a subsidy would be the old-fashioned way: yell at your representative. In short, you should listen to your buddy cause you’re definitely wrong dude.

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