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Democrats, taxes and framing the argument (update)
Posted by: McQ on Saturday, October 27, 2007

Per Robert Reich - Problem:
New data from the Internal Revenue Service show that income inequality continues to widen. The wealthiest 1 percent of Americans earn more than 21 percent of all income. That's a postwar record. The bottom 50 percent of all Americans, when all their wages are combined, earn just 12.8 percent of the nation's income.

Considering the magnitude of challenges ahead for America, it seems only reasonable that taxes should rise on the wealthy. Taxing the super-rich is not about class envy, as conservatives charge. It's about the nation having enough money to pay for national defense and homeland security, good schools and a crumbling infrastructure, the upcoming costs of boomers' Social Security (the current surplus has masked the true extent of the current budget deficit, but it won't for much longer) and, hopefully, affordable national health insurance. Not to mention the trillion dollars or so it will take to fix the Alternative Minimum Tax, which is now starting to hit the middle class.
Solution? Well certainly not anything profound like cutting spending or getting government our of areas it doesn't belong.

Nope, same old bromide applied to "problems" the government has itself has created. Note that even while Reich talks about "income inequality", further on he pleads for even more spending in the form of government run health insurance. And that, of course, will cost a mere pittance, won't it?

Reich goes on to whine about the fact that Democrats are afraid to raise taxes on the rich because, as he notes, in the '06 election, "donations from hedge-fund employees were running better than 2-to-1 Democratic. The party doesn't want to bite the hands that feed."

But the radical egalitarian agenda manages to again emerge with their favorite platitude about "fair shares" trotted to the fore:
If the rich and super-rich don't pay their fair share, the middle class will get socked with the bill. But the middle class can't possibly pay it.
This is easy stuff, folks. Note the premise. The bill, its size or what is on it is not open for discussion. All that is open for discussion is who gets stuck with it. And that is how the Democrats and Reich frame the argument. Imagine going into a restaurant, having a meal delivered to your table which you didn't order and because you look fairly prosperous, finding the bills of 4 other tables added to yours because they're not. Outraged? You bet you would be outraged.

But we hear basically the same argument here and most of us accept the premise because it probably won't be us footing the bill (just like those 4 tables of diners probably were fine with you picking up their tab).

It is that culture, so alive today in this country, which will be the eventual death of our society.

Says Reich:
If the Democrats stand for anything, it's a fair allocation of the responsibility for paying the costs of maintaining this nation.
Statements like that ought to make the hair on the back of your neck stand straight up, because it is pure Orwellian rhetoric. There is nothing fair or responsible about what the Democrats want to do, nor does it have a single thing to do with "maintaining" this nation. It is, instead, the road to killing this nation, slowly, but completely within a few generations.

UPDATE: How will Democrats target the "rich"? Dick Morris provides a preview:
Once the Democrats firmly control both ends of Pennsylvania Avenue, they will probably commit themselves to the following:

* Raise the top bracket on the income tax back up to 40 percent from its current 35 percent.

* Increase the Capital Gains Tax from its current 15 percent to 30 percent or, perhaps, eliminate it entirely and tax these gains as ordinary income (at 40 percent).

* Double, triple, or eliminate the ceiling on FICA taxes so that instead of taxing only the first $99,000 of income, the levy covers a much higher portion of earned income.

* Repeal much of the rollback in estate taxes passed by Bush.
All in the name of paying "fair shares".

How will all of this be sold?
So, to induce America to swallow their tax poison, the Democrats understand the need to camouflage their intentions and hide them in the rhetoric of middle-class tax cuts.

So here’s what they’ll do. They will bill their tax increases as a middle-class tax cut by including in the calculation the Bush middle-class tax cuts, which they will not permit to sunset, and also by taking credit for a long-term fix of the AMT. Together, the sums “saved” by these “tax cuts” will be gigantic, at least on paper, and will permit them to call their revenue-raising leviathan a tax reduction.

Of course, no actual middle-class human beings will see their taxes cut. The Bush tax cuts will just continue and the theoretical harm of the AMT will be averted.

Then they will repeal the carried interest exemption on all partnerships (real estate and energy as well as private equity) and will hold up the massive and obscene earnings of hedge fund managers and their unjustifiable tax preferences as the poster child for their tax increases. They will feature Blackstone and its billion-dollar executives as the targets of their tax increases.

All of this camouflage will fool enough people to get the votes in a Democratic Congress to pass their tax program. But once the increases start being felt on tax day, it will be a different story. But, by then, it will be too late.
Seems a fairly reasonable scenario given the stated intentions of most Democrats (repeal Bush tax cuts). We know the Dems are trying to produce a narrative to sell what they plan on doing. Let's watch and see if Morris has it right or not.
 
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Comments
That’s a postwar record.
Let’s be clear here. The two previous peaks were during the Clinton "dot com" boom and just before the 1929 Stock Market Crash.

A historian might tell you to get out of the market.
 
Written By: Neo
URL: http://
Psst — you get so caught up in this new idea that the Democrats have "narratives," that you don’t seem to realize you’re spinning one of your own. You have your narrative, others have theirs, and people vote. It’s not like anyone has the objective unvarnished truth out there, you’re all spinning. (And everyone will say ’no, you’re relativist if you don’t recognize that my narrative is truth and theirs is just a narrative,’ which is an empty charge).
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
Your concern for American taxpayers — the rich ones, at least — is touching. Just wondering: How much do you think the Iraq War costs? Who do you think is paying for that? Turning to the SCHIPS program: How much would SCHIPS cost to provide healthcare to American children? How much do you think we American taxpayers pay for health care for Iraqi children? Take a guess.
 
Written By: David Shaughnessy
URL: http://
You kinda get the feeling by showing their hand now, the Democrats could induce the beginnings of a recession, that a big tax increase could cause, in order to put the blame on the exiting President.
 
Written By: Neo
URL: http://
Maybe we should just get everyone together and come up with a percent that is considered "fair."

If the "wealthiest 1 percent of Americans earn more than 21 percent of all income" then what share of the taxes should be considered "fair"?

Is paying 27% of all federal taxes "fair" enough for a group (top 1%) earning 21% of income?

In fact, the TOP 20% is the ONLY quintile of earners who pay a LARGER share of federal taxes than they earn.

So again, how much more of a share would be considered "fair"?
 
Written By: JWG
URL: http://
You kinda get the feeling by showing their hand now, the Democrats could induce the beginnings of a recession, that a big tax increase could cause, in order to put the blame on the exiting President.
I kinda get the feeling that you’re paranoid and suffering from Bush Derangement Syndrome. Here’s the cure: Stop pretending that George Bush is America.
 
Written By: David Shaughnessy
URL: http://
McQ wrote:
Solution? Well certainly not anything profound like cutting spending or getting government our of areas it doesn’t belong.
Well, I certainly didn’t see ending the Iraq war or stopping research into missile defense, etc etc, listed there either. Everyone is happy to talk about spending cuts until their own pet programs are on the chopping block.

In Jonathan Rauch’s "Demosclerosis," he proscribed an alternate solution to shrinking government - don’t cut taxes, increase taxes! It seems perverse, but there is an interesting logic to it - when we cut taxes, spending never goes down, we just enter deficit spending. When this happens, we subsidize government spending (at the next generation’s expense.) This makes government look "cheaper" than it really is, and therefore people want more of it (spending.) If we raise taxes though, people are less interested in more government spending and more critical of wastage/pork (which they figure will lead to more taxes.) The take-away is that you can’t starve the beast, but it may be possible to kill it by overfeeding.
 
Written By: James O
URL: http://
Well, I certainly didn’t see ending the Iraq war or stopping research into missile defense, etc etc, listed there either. Everyone is happy to talk about spending cuts until their own pet programs are on the chopping block.
Two points:

1. Defense and spending for it are at least Constitutionally mandated.

2. Yes, everyone’s pet program, etc, however, I see nothing from the Dems talking about cuts anywhere to include defense.
 
Written By: McQ
URL: http://www.qando.net/blog
McQ wrote:
1. Defense and spending for it are at least Constitutionally mandated.
Well, if you really wanted you could interpret all kinds of social programs as being Constitutionally mandated by the "general welfare" bit in the Preamble, although I’m not going to poke that wasp nest any further.
2. Yes, everyone’s pet program, etc, however, I see nothing from the Dems talking about cuts anywhere to include defense.
Ah, what I meant here is that you implied they should be talking about spending cuts instead of tax raises; and one obvious cut that could be made would be the war (which you would naturally disapprove of.) That was the root of my pet program reference - we all are for spending cuts in the abstract, but not when it threatens projects that we happen to like - much like the diners in your metaphor, we don’t care so much about a shrinking menu, as long as our favorite meals remain available.
 
Written By: James O
URL: http://
Well, if you really wanted you could interpret all kinds of social programs as being Constitutionally mandated by the "general welfare" bit in the Preamble, although I’m not going to poke that wasp nest any further.
"General Welfare" doesn’t include healthcare, or any of the litany of things dems want to give "the poor".

It’s food and shelter. Not the best food, and not a palace, but food and shelter. Everything else is a luxury.
 
Written By: Scott Jacobs
URL: http://
Not the best food, and not a palace, but food and shelter. Everything else is a luxury
.
www.youtube.com/watch?v=Xe1a1wHxTyo
 
Written By: JWG
URL: http://
Well, if you really wanted you could interpret all kinds of social programs as being Constitutionally mandated by the "general welfare" bit in the Preamble, although I’m not going to poke that wasp nest any further.
I don’t think so ... I’ve never heard anyone claim the preamble was the law of the land ... it is precisely what it is called and nothing more.
Ah, what I meant here is that you implied they should be talking about spending cuts instead of tax raises; and one obvious cut that could be made would be the war (which you would naturally disapprove of.)
Of course that’s one obvious cut. But the war won’t last forever (despite the feelings of those who think it will), and much of the spending they’re talking about mandating will. They’re not pet projects, their spending programs that go on forever.
 
Written By: McQ
URL: http://www.qando.net/blog
One last word on "general welfare" - as I recall, it says "promote" the general welfare, not provide for it.

"Promote", as I’ve always understood it means to provide the atmosphere in which people can pursue their own general welfare, i.e. laws, courts, security, etc.
 
Written By: McQ
URL: http://www.qando.net/blog
I’ll just say that I think the terms "general welfare," "common defense," and "necessary and proper" are broad enough to allow anyone to read into them whatever they please and whatever their ideology deems fit. I don’t support a national health care program, but I think calling it unconstitutional is a weak counter-argument when there are tons of better ones to choose from. Anyhow, back to my main point-

McQ wrote:
They’re not pet projects, their spending programs that go on forever.
The problem is that all spending programs go on forever. We’ve got troops in bases all over the world, relics of wars from decades past. While eventually the need for troops in Iraq will lessen, we’ll likely have a presence there for a considerable length into the future (indeed, several folks on this journal advocate exactly that.) Plus, we’ve got subsidies for every group under the sun, some dating back to FDR more than a half-century ago. Crying "cut spending" strikes me as a bit of a Pickett’s Charge - noble and well-meaning, but doomed to failure.

None of the past four administrations or Congresses managed to do any kind of meaningful spending cuts, although we have managed a number of tax cuts. To me it’s clear you can’t starve the beast; it just eats the next generation through debt. Conservatives have successfully pressed their tax cut agenda without successfully cutting government spending, which only makes government spending seem cheaper than it really is. I think that people aren’t going to reject spending increases until they really feel how heavy the hand of government is, and pay the full price for their goodies.

Of course, that would require taxing the "middle class," not just the wealthy, so it’s not going to happen.
 
Written By: James O
URL: http://
No mention of Hollyweird stars, or trial lawyers...

No mention, either, that the highest paid are also, widely, much more productive in terms of what the rest of the population wants to buy.

Certainly the elite must put all that into the priority that THEY want to cram down everyone else’s throats.

It it to laugh: those who call themselves (or try to evade the label) "progressives" are really a throwback to ancient times of pharaohs and their high priests, or worse yet, tribalistic eopchs where it was considered that if one prospered more than the rest of the tribe, it was because he was in league with the devil. Some "progress", huh? Yet, it is still the overriding mindset of most impoverished economies.

Progressivism - a reactionary great leap BACKWARDS.
 
Written By: Sharpshooter
URL: http://
1. Defense and spending for it are at least Constitutionally mandated.

2. Yes, everyone’s pet program, etc, however, I see nothing from the Dems talking about cuts anywhere to include defense.
Notice, too, that when localities feel the tight purse strings, it’s always police and fire departments (proper, more or less, functions of government), but never parks and recreation, nor redistribution from the productive and responsible to the lazy and irresponsible.

Of course, if that tool was not in their box, they’d have to bribe voters with their own money.
 
Written By: Sharpshooter
URL: http://
You kinda get the feeling by showing their hand now, the Democrats could induce the beginnings of a recession, that a big tax increase could cause, in order to put the blame on the exiting President.
I kinda get the feeling that you’re paranoid
Just because your paranoid doesn’t mean that they are out to get you.
 
Written By: Neo
URL: http://
I’ve learned by reading QandO that America is certainly on the left side of the Laffer curve so why not raise taxes?
 
Written By: abw
URL: http://abw.mee.nu
* Increase the Capital Gains Tax from its current 15 percent to 30 percent or, perhaps, eliminate it entirely and tax these gains as ordinary income (at 40 percent).
I’d be all for taxing capital gains as normal income if they’d just index the gains to inflation. But no one is talking about doing that.
* Double, triple, or eliminate the ceiling on FICA taxes so that instead of taxing only the first $99,000 of income, the levy covers a much higher portion of earned income.
Has it never occurred to these people that the reason the payment for Social Security is capped is that the benefit is capped.

Let’s stop talking about Social Security as an insurance program, as well. It’s the most perverse insurance scheme imaginable: the lowest risks pay the highest premiums.

Removing the cap converts Social Security into the biggest income transfer program in the country: the productive are forced to give up 6.2% of their earnings (12.4% if they are so industrious as to create their own job) to people who are not working.

BTW, removing the cap on Social Security will pretty much stop any company from ever offering Non-Qualified Stock Options as extra compensation. NQSOs are taxed as W2 income, which means the recipient must pay Social Security and Medicare taxes out of them. It also means the issuing company must match Social Security and Medicare. With the Social Security cap removed, it will result in companies paying a lot more when these options are exercised.


 
Written By: Steverino
URL: http://
I don’t support a national health care program, but I think calling it unconstitutional is a weak counter-argument when there are tons of better ones to choose from.
You think it’s weak based solely because the Preamble has some words that are potentially broadly interpreted? Hah. The irony.
we all are for spending cuts in the abstract, but not when it threatens projects that we happen to like
See, this just isn’t true. Some people might be against projects they don’t like, but their opposition doesn’t come from a principled opposition to "spending" as such, they just don’t like the program. Let’s not pretend that everyone’s doing their best to only spend when absolutely necessary.

 
Written By: Linus
URL: http://
Article 1, Section 8
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;
It’s not just the Preamble, but whatever.

Linus wrote:
Let’s not pretend that everyone’s doing their best to only spend when absolutely necessary.
No, they’re not; but I’d assume most people are for cutting spending somewhere (since that can lead to lower taxes, which everyone likes.) It’s just that the desire to cut spending by the public is eclipsed by the desire of the beneficiaries of said spending to hold on to those dollars. We’re all for cutting other people’s spending (especially if that money can be redirected to us,) it’s just hard (or close to impossible) to pry that spending away, so we don’t bother.
 
Written By: James O
URL: http://
It’s not just the Preamble, but whatever.

Thank you for pointing that out. Also, with regard to McQ’s objection earlier, you will note Article 1 says "provide for," not "promote." The Preamble says "promote"; Article 1 says "provide for."
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Politics now is marketing, whether by the left or the right. The Iraq war was "sold" — easy, we’ll be greeted as liberators, oil revenues will pay for it, etc. Social welfare programs are sold via emotional appeals and efforts to claim government can solve problems relatively easily. Social welfare opposition is sold by appealing to class (even though they claim the other side appeals to class warfare), saying ’your hard earned money will go to the poor, lazy, slobs.’

So what is the reality? Big government warfare, and big government welfare, is growing due to the fact politics is no longer about rational debate and decision making, but warfare about which "narrative" is correct. Instead of trying to deal with complexities and reach tough compromises, different ’world views’ are promoted — and marketed. Bloggers and pundits ’choose sides,’ personalize the issue (look at all the personal attacks by each side on the other side) and we move another step away from the ideals of the founders.

Who wins? Government. Ultimately, the big welfare and big warfare sides tend to win because they can promise the most. But there is a limit — when it becomes clear that the promises are not met, then there is a backlash. Hopefully.

(PS - if you want to know the defacto constitutionality of something, rather than various idiosyncratic theories, see what the Supreme Court has ruled constitution and unconstitutional. That’s what matters in the real world.)
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
James O — I think you’re wrong, I suspect that many posters on this blog would accept an X% across the board cut on government spending. Even if that includes defense, social security, etc. I would like to cut defense spending less than many of the other programs, but I prefer much more to see overall spending decrease. So if that’s what it takes, so be it.
 
Written By: metis314
URL: http://
1. Defense and spending for it are at least Constitutionally mandated.
Invading, occupying and attempting to socially re-engineer Iraq is not - constitutionally speaking - "defending" the United States, of course. Only dead enders - the Bush cultists - still believe that.

McQ believes that strengthing Iran’s hand in Iraq - which is what we have done - is "defending" the U.S. Sane people disagree.

Ollie North thought that giving aid to the Iranians was a "neat idea." For some reason, this notion still has currency among the political right in America.

Weird.

 
Written By: mkultra
URL: http://
James O. and Kathy -

Though James specifically mentioned the Preamble, which is why McQ responded specifically to that, you’re correct that the "general Welfare" does show up again in Article I, Section 8... as an intended end of the power, just as it is an intended end of the ordaining and establishing the Constitution. It is not an enumerated power itself.

In Federalist No. 41, Madison wrote of the general welfare phrase:
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
If "provid[ing] for... the general Welfare" were taken as a power, the ends and means of government would be nearly unlimited, precluding the whole purpose of the Constitution, and especially (two years after the passage of the Constitution) of the Ninth and Tenth Amendments.

Now, you may argue whether the "general Welfare" phrase is intended as one limit on the purposes for which the government may tax, or the other enumerated powers are the only purposes for which the government may tax. But providing for the general welfare is not a power, whatever state decision-makers may have said or done since then.
 
Written By: Bryan Pick
URL: http://www.qando.net
"General welfare" is not the same as the "welfare of each and every citizen".

And just for fun:

Invading, occupying and attempting to socially re-engineer Germany and Japan is not - constitutionally speaking - "defending" the United States, of course. Only dead enders - the FDR cultists - still believe that.

Some believe that strengthing Russia’s hand in Europe - which is what we have done - is "defending" the U.S. Sane people disagree.

George Marshall thought that giving aid to the Europeans was a "neat idea." For some reason, this notion still has currency among the political right in America.

Weird.
 
Written By: abw
URL: http://abw.mee.nu
abw -
I’ve learned by reading QandO that America is certainly on the left side of the Laffer curve so why not raise taxes?
On the chance that someone takes this question as something other than sarcasm: I’d prefer that the aim of government not be to maximize the wealth it takes from the American people.

And keep in mind: the tax rate that strips the most revenue from the American people during this tax-collection cycle may, by restricting economic growth, result in lower revenue in future collections. Your time horizon determines your "optimum" tax rate at each collection point.
 
Written By: Bryan Pick
URL: http://www.qando.net
Invading, occupying and attempting to socially re-engineer Iraq is not - constitutionally speaking - "defending" the United States.
Exactly. Though we seem to be mimicking the Roman Empire, whose expanse was all due to "defensive wars" if you believe their own history. You can always manufacture possible future threats to rationalize aggressive action.

Iraq is every bit "big government social engineering" as the most expansive social welfare program on the planet. I’m not sure why those who otherwise distrust "big government" don’t see this, and don’t see that the failures in Iraq are indicative of the same kind of misjudgements that accompanied the so-called "war on poverty" and effort to build the "great society."
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
Politics now is marketing
Now this I can agree with.
Though we seem to be mimicking the Roman Empire
Although, this is BS. Just how much in taxes has the US Treasury gotten from our plunder of Iraq ? Even Jesus in the land of Judia said to "give onto Ceasar what is Ceasar’s". So far, I haven’t seen a dime come back from Iraq, or, better yet, not a drop of that "oil for blood".
 
Written By: Neo
URL: http://
You can always manufacture possible future threats to rationalize aggressive action.
Just because one might be able to "manufacture" a future threat doesn’t mean that there aren’t future threats.

We can also "manufacture" an attack against America to rationalize aggressive action — does that mean there are no actual attacks against America?

Thanks for your deep analysis, Erb.

No how about telling us what share of taxes would be fair on a group earning a 21% share of all income.
 
Written By: JWG
URL: http://
Just because one might be able to "manufacture" a future threat doesn’t mean that there aren’t future threats.
No one said otherwise. The point is to avoid the temptation to manufacture threats in order to rationalize an aggressive foreign policy that both kills and destroys abroad while weakening at home.
No how about telling us what share of taxes would be fair on a group earning a 21% share of all income.
You don’t tax groups, you tax individuals. You’ve worded the question in an irrational way.
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
You don’t tax groups, you tax individuals. You’ve worded the question in an irrational way.
Oh, please...

You don’t pay groups a salary, either.

The post began with a quote that "income inequality continues to widen" with the top 1% earning 21% of all income. I pointed out that they also pay 27% of all federal taxes, which was conveniently left out of the comparison.

Do you think this is fair? If not, how much more/less of the overall share should they be expected to pay?

Or is complaining that everyone has a "narrative" the best you can do?
 
Written By: JWG
URL: http://
... the "general Welfare" does show up again in Article I, Section 8... as an intended end of the power, just as it is an intended end of the ordaining and establishing the Constitution. It is not an enumerated power itself.

Wouldn’t that be true then of ’the common defense’ as well? Given that it’s listed right next to general welfare in the first bolded section in the first paragraph of your paste.

 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Kathy, the answer is right there in the citation if you’d bother to actually read it. Have you seriously never studied the Constitution or the Federalist Papers?
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.
If you actually read the beginning of Federalist No. 41, you’ll get even more information about the national defense that wasn’t posted here.
 
Written By: JWG
URL: http://
You don’t pay groups a salary, either.

The post began with a quote that "income inequality continues to widen" with the top 1% earning 21% of all income. I pointed out that they also pay 27% of all federal taxes, which was conveniently left out of the comparison.

Do you think this is fair?
I’m not sure. Why don’t you make an argument one way or another, and I’ll consider it.
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
Did you post the beginning of Federalist No. 41? I read and responded to what you posted. Your re-paste of a sentence from what you already pasted does not answer or address my question.

My question was perfectly reasonable. In response, I get sarcasm and defensiveness. I’m not sure why. I mean, if there is an easy answer to my question that validates your position, why not just make it?
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
if there is an easy answer to my question that validates your position, why not just make it?
There was an easy answer. It was already posted within the No. 41 quote.

You asked: "Wouldn’t that be true then of ’the common defense’ as well? Given that it’s listed right next to general welfare..."

Madison gave you the answer and I reposted it since you missed it the first time.

Here it is again:
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.
 
Written By: JWG
URL: http://
"Politics now is marketing"

Now?
 
Written By: timactual
URL: http://
Madison gave you the answer and I reposted it since you missed it the first time.

No. I did not miss the answer, and the answer is not in the Madison quote you posted.

For whatever reason, you don’t wish to answer my question, and that would be fine if you were being straightforward about it. But you are not. You are playing games, and I don’t play games.

So goodbye, and good luck.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Kathy -

1. JWG and I are not the same person.
2. Yes, the answer is in the original Madison quote. Providing for the common Defence is not an enumerated power, just as providing for the general Welfare is not a power. I believe the cite made that pretty clear.
3. Please do take the time to read Federalist No. 41.
 
Written By: Bryan Pick
URL: http://www.qando.net
" JWG and I are not the same person."

Wrong. You are all right-wing clones.
 
Written By: timactual
URL: http://
I apologize for mixing up Bryan’s comment with JWG’s.

At some point, I am sure I will read Federalist No. 41, although as you know The Federalist Papers are not the Constitution and do not have the legal force of the Constitution. McQ made this same point farther back in this discussion with regard to the Preamble. And if the Preamble to the Constitution is not the Constitution and does not have the legal force of the Constitution, The Federalist Papers certainly do not.

The above having been said, I think we are talking at cross purposes here. I have been commenting in the assumption that you (Bryan Pick) and you (JWG) disagree with the interpretation of "provide for the general welfare" to authorize public education, government-subsidized health care, income support services, and so on. Equally, I have been commenting in the assumption that you (both of you) and others here, come to the opposite conclusion about the common defense. McQ wrote here that the common defense "is at least mandated" by the Constitution — and, he further states, social programs for the general welfare are not.

So help me understand here. If, as you write, quite clearly, above, "Providing for the common Defence is not an enumerated power, just as providing for the general Welfare is not a power," then on what basis do you still feel justified in claiming that the Iraq war, say (common defense in your view) is constitutionally mandated, while universal health insurance (general welfare) is not so mandated?

I understood perfectly well that neither the general welfare nor the common defense were enumerated powers in Madison’s understanding as conveyed by his quote. That was the entire point of my question to you.

Do you understand now?
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
I understood perfectly well that neither the general welfare nor the common defense were enumerated powers in Madison’s understanding as conveyed by his quote. That was the entire point of my question to you.
Military matters ARE enumerated in the Constitution. Madison discusses it at the beginning of no. 41.
The Federalist Papers are not the Constitution and do not have the legal force of the Constitution.
*sigh*

Do you realize that Madison was the primary author of the Constitution? Don’t you think he would have a tiny bit of insight into what it actually means and allows?
 
Written By: JWG
URL: http://
Kathy -

Mix-ups happen. No sweat, and thank you for the apology.

It’s true that the Federalist Papers are not synonymous with the Constitution, but they are masterful works of political theory that explain the ethos of the Constitution. They tell us a great deal about the framers’ intent and about how people of the day—especially the people who wrote and ordained the Constitution—interpreted the language of the document.
I have been commenting in the assumption that you (Bryan Pick) and you (JWG) disagree with the interpretation of "provide for the general welfare" to authorize public education, government-subsidized health care, income support services, and so on. Equally, I have been commenting in the assumption that you (both of you) and others here, come to the opposite conclusion about the common defense. McQ wrote here that the common defense "is at least mandated" by the Constitution — and, he further states, social programs for the general welfare are not.
I can’t speak for McQ, but if I had to guess, I’d say that he was referring to the enumerated powers that qualify and specify the provision of the common defense. Section 8 specifically states several powers of the Congress to provide for the common defense, including raising armies, providing for a navy, and calling forth the militia. It does not enumerate powers for distributionary programs, although it does grant some powers over domestic affairs that could contribute to the common welfare, such as establishing post offices and post roads, promoting useful arts and sciences, and so on.
So help me understand here. If, as you write, quite clearly, above, "Providing for the common Defence is not an enumerated power, just as providing for the general Welfare is not a power," then on what basis do you still feel justified in claiming that the Iraq war, say (common defense in your view) is constitutionally mandated, while universal health insurance (general welfare) is not so mandated?

I understood perfectly well that neither the general welfare nor the common defense were enumerated powers in Madison’s understanding as conveyed by his quote. That was the entire point of my question to you.

Do you understand now?
I do understand. But since neither JWG nor I stated that "to... provide for the common Defence" is a power, and since I posted a quote that explicitly included the common defense, your question came off as if you hadn’t read or comprehended the citation. That, to me, explains and justifies JWG’s reaction.

I don’t believe that the phrase "to [...] provide for the common Defence" is a mandate. It is the enumerated powers that follow that are a mandate for Congress to support a war overseas. I further believe that a full declaration of war is not necessary for the military to make war, and that a limited Congressional grant of war powers to the Commander-in-Chief is fully justifiable.
 
Written By: Bryan Pick
URL: http://www.qando.net
I would add that it is perfectly reasonable for people to debate and disagree as to whether specific military actions (e.g. the invasion and continued occupation of Iraq) are helping to provide for the defense of American interests.

However, there are clear differences between how the Constitution delegates power and money to provide for the common defense versus for the general welfare.
 
Written By: JWG
URL: http://
But since neither JWG nor I stated that "to... provide for the common Defence" is a power, and since I posted a quote that explicitly included the common defense, your question came off as if you hadn’t read or comprehended the citation.

Yes, I can understand how you would have taken my question that way now. My question only made sense if you were making a claim that the common defense was a specific mandate, and the general welfare was not. Many conservatives/libertarians/right-wingers (pick your label) do feel that way, and that’s why I made that assumption.

Like I said in my reply to Bryan’s e-mail, we were talking at cross-purposes.

Do you realize that Madison was the primary author of the Constitution? Don’t you think he would have a tiny bit of insight into what it actually means and allows?

Yep. I do realize that. Madison was the primary author of the Constitution, and Jefferson was the primary author of the Bill of Rights, or the first 10 amendments of the Constitution. And yes, I do think he would have the kind of insight you mentioned. That said, Madison did not write all of the Federalist Papers, and in general, all of the authors of the Federalist Papers were giving their interpretations of different aspects of the Constitution, and they were not all in accord. No one position in any particular Federalist Paper is the definitive word. All of them are merely guideposts for us, here and now, to intuit what the Founders’ intentions might have been — and we tend to do that mostly when we disagree in the here and now.

The Federalist Papers are not the Constitution.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Congress has the power to provide for the general welfare, and the power to make any and all laws necessary and proper for excersizing that power. While you could certainly argue that an NHS is neither necessary nor proper with regard to providing for the general welfare, you can line up plenty of liberals too who would argue otherwise.

I still can’t quite see how NHS would be unconstitutional. A monumentally bad idea, sure; but I’m not seeing how the Constitution forbids it. The Constitution doesn’t explicitly grant the power to have an air force either, but there’s no controversy over whether the USAF is constitutional.
 
Written By: James O
URL: http://
James O -
Congress has the power to provide for the general welfare, and the power to make any and all laws necessary and proper for excersizing [sic] that power.
You must not have been reading the debate up to this point, because this has been covered several times and I have provided evidence that your claim is false. Since you have neither addressed my argument nor provided any evidence of your own, I’m content to ignore you until you do, with one parting comment:

A(n awkwardly constructed) grant of power to do anything arguably necessary to provide for the common defense and the general welfare would produce a central government with virtually unlimited powers. Do you believe that this was the intent of the Framers, or something that Americans of the time would have considered legitimate? Please provide some evidence for any claims you make.
-=-=-=-=-=-=-
Kathy -
My question only made sense if you were making a claim that the common defense was a specific mandate, and the general welfare was not. Many conservatives/libertarians/right-wingers (pick your label) do feel that way, and that’s why I made that assumption.
Really? I confess I can’t recall anyone of that description making that argument. Could be I’m just not as widely read as you are, but when you say "many," I have to wonder what you mean.
Madison was the primary author of the Constitution, and Jefferson was the primary author of the Bill of Rights, or the first 10 amendments of the Constitution.
Erm... no, Jefferson was not the primary author of the Bill of Rights, though he was an early supporter. Madison was behind the Bill of Rights, drafting them and proposing them to Congress, after initial opposition to the idea.
The first ten amendments were articles originally proposed by Madison, as was the Twenty-Seventh Amendment, sometimes called "the Madison Amendment" around the time of its passage.


Now, as for this...
All of them are merely guideposts for us, here and now, to intuit what the Founders’ intentions might have been — and we tend to do that mostly when we disagree in the here and now.
The question of the Founder’s intent is not a matter of intuition; you actually have to read their arguments, read the entire Constitution for context, and reason about what their intentions were. We can figure out from historical context what the relevant actors considered legitimate at the time of passage. Lucky for us, they had a habit of keeping records of deliberations and of writing their thoughts in letters.

For example, speaking of Thomas Jefferson, do you know what his stated position on the general Welfare clause was?
“[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”
- 3 Writings of Thomas Jefferson (Library Edition, 1904), 147–149.
I hope James O is paying attention.
 
Written By: Bryan Pick
URL: http://www.qando.net
I guess if you like, NHS could be justified under the regulating commerce clause, as that would in theory serve the end of providing for the general welfare (and would certainly bring lots of regulations with it.)

If I understand your argument correctly, Social Security (not to mention a host of other government spending projects) would be similarly unconstitutional, since the power to implement it is not listed in the enumerated powers. Why hasn’t this been successfully challenged in the Supreme Court on grounds of constitutionality, then? In US v. Butler (1936), the court opined w.r.t. the general welfare clause:
The clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States.
Certainly you could argue that this is ideologically not in alignment with the Founder’s intentions, and looking at the TJ quote certainly seems to back you up on that; but practically speaking I’d assume this would cover a NHS. I still feel that conservatives/libertarians will be better served by arguing against the inefficiencies inherent in an NHS, rather than its potentially dubious constitutionality.
 
Written By: James O
URL: http://
The question of the Founder’s intent is not a matter of intuition; you actually have to read their arguments, read the entire Constitution for context, and reason about what their intentions were. We can figure out from historical context what the relevant actors considered legitimate at the time of passage. Lucky for us, they had a habit of keeping records of deliberations and of writing their thoughts in letters.

Two thoughts:

First, which Founder’s intention should we follow in any particular instance?

Second, given that you appear to value intentions more than what is actually written in the Constitution, I assume you are not a strict constructionist.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
I confess I can’t recall anyone of that description making that argument. Could be I’m just not as widely read as you are, but when you say "many," I have to wonder what you mean.

I mean many. No, wait, that’s not true. I mean most. I mean the overwhelming majority. But to be fair, I’m speaking specifically of conservatives/libertarians/right-wingers whom I have debated or whose writings I have read here on the Internet. And in print. I must say, though, that I have read this as the conservative position for as long as I can remember. Defense spending is constitutionally mandated. In fact, defense is one of the very few things the government has a right to get involved in. There’s nothing in the Constitution about public schools or health care or unemployment or social security or food stamps or any of that. The Department of Education is unconstitutional. The Environmental Protection Agency is unconstitutional. The National Park Service and the Fish and Wildlife Service, unconstitutional. The Food and Drug Administration. The Department of Health and Human Services. The list goes on. All of these agencies are unconstitutional, because there is no mention of them in the Constitution.

I like to take people at their word, but I find your puzzlement disingenuous. I’m not saying you agree with the above yourself, but I find it very hard to believe that you are not aware of the conservative mantra that only defense and a few other areas specifically mentioned in the Constitution should be funded by the federal government. I have heard it over and over and over again. Of course, I’m 57. If you are in your 20s or 30s, you haven’t had as long a time to hear conservatives rail about public spending being socialist and communist and un-American. :-)
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Jefferson was not the primary author of the Bill of Rights, though he was an early supporter. Madison was behind the Bill of Rights, drafting them and proposing them to Congress, after initial opposition to the idea.

You’re right. I just googled it. Shoulda done that before. :-)

Jefferson was concerned about the lack of a bill of rights in the constitution as it was then, but he did not write it.

Which is basically what you said.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
James O -
I guess if you like, NHS could be justified under the regulating commerce clause, as that would in theory serve the end of providing for the general welfare (and would certainly bring lots of regulations with it.)
That’s interstate commerce, not all commerce. You usually don’t cross state lines to visit your doctor, and even if you did, I have trouble seeing how the federal government interfering in that would contribute to the general welfare rather than butting in on a local—indeed, individual—matter. You, like most readers today, have a different concept of the "general welfare" than the Framers did. Both you and Kathy, please read this. There’s plenty of food for thought in there that will save me the trouble of replicating the arguments.
If I understand your argument correctly, Social Security (not to mention a host of other government spending projects) would be similarly unconstitutional, since the power to implement it is not listed in the enumerated powers. Why hasn’t this been successfully challenged in the Supreme Court on grounds of constitutionality, then?
I wish I knew the full answer.
In US v. Butler (1936), the court opined w.r.t. the general welfare clause:
The clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States.
Certainly you could argue that this is ideologically not in alignment with the Founder’s intentions, and looking at the TJ quote certainly seems to back you up on that; but practically speaking I’d assume this would cover a NHS.
I had a feeling that Butler would come up. Read the paper I linked to above. That will cover it, I think, but if you want me to write out my own thoughts, that’s going to take me some time, and it’s almost 3 a.m. here.

For now, note some other things said in Butler, including this:
The clause thought to authorize the legislation — the first — confers upon the Congress power
to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States....
It is not contended that this provision grants power to regulate agricultural production upon the theory that such legislation would promote the general welfare. The Government concedes that the phrase "to provide for the general welfare" qualifies the power "to lay and collect taxes." The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted.
Yes, Butler had some serious problems and turned out to be a Trojan horse for further abuses. But the claim in the decision of United States v. Butler was that the first clause is a distinct power, not that the phrase "to provide for the [...] general Welfare" was a distinct power.
I still feel that conservatives/libertarians will be better served by arguing against the inefficiencies inherent in an NHS, rather than its potentially dubious constitutionality.
There’s no reason we can’t argue both. A proposal can be both stupid and improper.
-=-=-=-=-=-=-=-
Kathy -
All of them are merely guideposts for us, here and now, to intuit what the Founders’ intentions might have been — and we tend to do that mostly when we disagree in the here and now.
The question of the Founder’s [That’s a typo; I meant to place the apostrophe after the ’s’] intent is not a matter of intuition; you actually have to read their arguments, read the entire Constitution for context, and reason about what their intentions were. We can figure out from historical context what the relevant actors considered legitimate at the time of passage.
Two thoughts:
First, which Founder’s intention should we follow in any particular instance?
Second, given that you appear to value intentions more than what is actually written in the Constitution, I assume you are not a strict constructionist.
To the first: I’m only saying that if you’re concerned with the Founders’ intentions, you can’t arrive at them through intuition. To intuit is not to reason.

To the second: I haven’t really shown my hand, so to speak, regarding what I value in constitutional interpretation and argument. I cited Madison earlier in this thread to show that a reasonable reading of the language of the Constitution does not show providing for the general welfare to be an enumerated power. Madison didn’t massage an argument out of the finer points of language; he browbeat the critics of the Constitution for "stooping to such a misconstruction" and contrasted "an absurdity" with "Nothing is more natural nor common than...". This, from the "Father of the Constitution" and the drafter of eleven amendments. I have since then provided evidence that this was far from a minority position in the early republic—that "to provide [...] for the general Welfare" is not a plenary power. The claim that it is a power at least begs the question of how it came to be that way, if it is so.
My question only made sense if you were making a claim that the common defense was a specific mandate, and the general welfare was not. Many conservatives/libertarians/right-wingers (pick your label) do feel that way, and that’s why I made that assumption.
I confess I can’t recall anyone of that description making that argument. Could be I’m just not as widely read as you are, but when you say "many," I have to wonder what you mean.
I mean many. No, wait, that’s not true. I mean most. I mean the overwhelming majority. But to be fair, I’m speaking specifically of conservatives/libertarians/right-wingers whom I have debated or whose writings I have read here on the Internet. And in print. I must say, though, that I have read this as the conservative position for as long as I can remember. Defense spending is constitutionally mandated. In fact, defense is one of the very few things the government has a right to get involved in. There’s nothing in the Constitution about public schools or health care or unemployment or social security or food stamps or any of that. The Department of Education is unconstitutional. The Environmental Protection Agency is unconstitutional. The National Park Service and the Fish and Wildlife Service, unconstitutional. The Food and Drug Administration. The Department of Health and Human Services. The list goes on. All of these agencies are unconstitutional, because there is no mention of them in the Constitution.

I like to take people at their word, but I find your puzzlement disingenuous. I’m not saying you agree with the above yourself, but I find it very hard to believe that you are not aware of the conservative mantra that only defense and a few other areas specifically mentioned in the Constitution should be funded by the federal government. I have heard it over and over and over again.
I believe you’re confusing two very different arguments. The argument that "that only defense and a few other areas specifically mentioned in the Constitution should be funded by the federal government" is not the same as the argument that "the common defense [is] a specific mandate, and the general welfare [is] not", as you framed it earlier. I hear plenty of people on the Right arguing the former, and I can’t recall hearing anyone on the Right argue the latter.

I don’t believe that "to provide for the common Defence" is an enumerated power, but the enumerated powers that follow in Section 8, qualifying and specifying the provision of the common defense, are specific mandates granting power to Congress to provide for a common defense. To name several:
The Congress shall have Power [...]
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
It is impossible to find the same regarding distributionary schemes and social programs.
 
Written By: Bryan Pick
URL: http://www.qando.net
Bryan,

I only have a minute to write this, as I have to be at work by noon, but I wanted to ask a question that I’ve been puzzled about. It will help me respond to your other points later this evening:

This quote from Butler:

The Government concedes that the phrase "to provide for the general welfare" qualifies the power "to lay and collect taxes." The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted.

You and others have made this point before, that you believe the Founders intended only for Congress to have the power to impose taxes for the purpose of the general welfare, rather than actually providing directly for the general welfare (a la legislation, one assumes).

But can you explain to me the significance of the distinction you’re making between taxation for and providing for? Meaning: Congress is the arm of the government that proposes, writes, and passes legislation, as well as the body that imposes taxes. How does Congress impose taxes for programs it cannot legislate into existence? Where do the programs come from that Congress is empowered to lay taxes to pay for, if not from Congress?

I am mightily perplexed by this.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Kathy -

I thought I’d already covered it. Madison explained that "a specification of the objects alluded to by these general terms [the common Defence and the general Welfare] immediately follows, and is not even separated by a longer pause than a semicolon", by which of course he means the enumerated powers after the first clause. Article I, Section 8 provides several grants of power that qualify and specify the provision of the general Welfare. The Congress has the enumerated powers to establish post offices and post roads, promote the useful arts and sciences, coin money, etc., as I noted earlier.
 
Written By: Bryan Pick
URL: http://www.qando.net
Madison also addressed it in a veto he signed in 1817 when president. It is a long cite and it starts by addressing commerce, roads and canals, but that is important to understand the context of the 2nd paragraph:
The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
 
Written By: McQ
URL: http://www.qando.net/blog
I thought I’d already covered it. ...

I understand now. The "necessary and proper" clause provides the answer to my question. Congress has the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...."

I read through the entire text of Article 1, Section 8 several times, and I think you’re right. I think it’s saying, in paraphrase: Congress shall have the right to lay and collect taxes ... to pay the country’s debts. Congress shall have the right to lay and collect taxes ... to provide for the common defense. Congress shall have the right to lay and collect taxes ... to provide for the general welfare. Furthermore, it’s saying, "debts, the common defense, and the general welfare" are defined as follows — and then you have the enumerated powers.

So I see your point that the founders considered "the general welfare" to be the specific items listed in the enumerated powers.

However, I don’t agree that "the general welfare" in the 21st century has to be — or should be — defined so narrowly as to include only the specific purposes listed in Article 1, Section 8. If we had to define the general welfare or the public good in literally only the terms understandable to the 18th century, society would collapse. And the Founders — wise men that they were — provided for that in at least two ways, one negative (by omission) and one positive (by proactive assertion).

In Article 1, Section 9, the limits of congressional power are enumerated. Social programs to promote the general welfare and/or to relieve citizens’ suffering that affects the general welfare are not among the enumerated limits to Congress’s power.

And in the Bill of Rights, the Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That’s the Construction of the Constitution Amendment — clearly designed specifically to *prevent* a literal, or overly strict, reading of the Constitution.

Your serve.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
So I see your point that the founders considered "the general welfare" to be the specific items listed in the enumerated powers.
Yes and no. Section 8 is not an exhaustive definition of what constitutes "the general welfare" for any particular Founder. Those were, however, the only powers contributing to the general welfare over which they agreed to grant power to Congress.
However, I don’t agree that "the general welfare" in the 21st century has to be — or should be — defined so narrowly as to include only the specific purposes listed in Article 1, Section 8. If we had to define the general welfare or the public good in literally only the terms understandable to the 18th century, society would collapse.
That’s debatable, but in any case, we do have an amendment process.
And the Founders — wise men that they were — provided for that in at least two ways, one negative (by omission) and one positive (by proactive assertion).

In Article 1, Section 9, the limits of congressional power are enumerated. Social programs to promote the general welfare and/or to relieve citizens’ suffering that affects the general welfare are not among the enumerated limits to Congress’s power.

And in the Bill of Rights, the Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That’s the Construction of the Constitution Amendment — clearly designed specifically to *prevent* a literal, or overly strict, reading of the Constitution.
See, that’s exactly what the Anti-federalists feared: that if they didn’t specifically say that something was off-limits, the government would do it. And some on the other side said that if they did say some things were off-limits, that would imply that powers not specifically enumerated as off-limits are fair play.

Madison on the Ninth Amendment:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].
Justice Story on the same (his classic Commentaries available through Google, including this on the general welfare):
§ 1898. The next amendment is: "The enumeration in the constitution of certain rights shall not be construed to deny, or disparage others retained by the people." This clause was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others; and é converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies. The amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights.

The Ninth Amendment is the opposite of what you’re contending. It’s a catch-all that emphasizes that the rights of man are too numerous to enumerate. Rights and powers mutually delineate each other, so you can take the Ninth and Tenth Amendments as sweeping restrictions on central government power, rather than as implied powers. They would be meaningless if the central government had all powers not explicitly denied it.

Section 9 is not exhaustive, nor is it intended to be so; it is rather a set of very specific restrictions on Congress that match up pretty well with the enumerated powers.
 
Written By: Bryan Pick
URL: http://www.qando.net
The Ninth Amendment is the opposite of what you’re contending. It’s a catch-all that emphasizes that the rights of man are too numerous to enumerate.

I don’t agree with this at all.

If the rights of man are too numerous to enumerate, what is to stop — or more accurately, what *should* stop — the people from asserting and securing those rights through the government they have set up to so secure?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Seems crystal clear to me. The people are not to be denied rights they retain by virtue of being human, simply because those rights are not specifically listed in the Constitution. The right to an education that is equal in quality regardless of one’s social or economic rank in society is a right of man. Or at least, one can make that argument. And the people cannot be denied that right simply because a public education is not an enumerated power in the Constitution.

Section 9 is not exhaustive, nor is it intended to be so; it is rather a set of very specific restrictions on Congress that match up pretty well with the enumerated powers.


Didn’t say it was exhaustive or intended to be so — but since the authors of the Constitution did not see fit to forbid Congress from passing laws that mandate federal funding of public education, one can state with some confidence that public education is not disallowed by the Constitution. There is nothing in the Constitution that would make it unconstitutional.

That’s debatable, but in any case, we do have an amendment process.

Why would the amendment process be needed for Congress to legislate and fund public education, or national health care or preserving wilderness, as just a few examples? There is nothing in the constitution that acts as a bar to such policies.

The amendment process is for situation in which the country wants to do something that it cannot do as the constitution currently provides. For example, if the government wanted to be able to conduct secret surveillance on the personal communications, property, possessions, or residences of Americans without having to get a search warrant or prove probable cause, we would need to pass an amendment to make that constitutional, since the Fourth Amendment forbids unreasonable search and seizure, which is defined as search and seizure in the absence of probable cause and a search warrant. If the government conducted such a policy in secret or induced Congress to legislate such a policy, it would be unconstitutional, because the Fourth Amendment clearly forbids that kind of policy. So in a case like that, the government could turn to the amendment process.

Hmmm. Hmmmm. Oooops. Never mind. :-(

 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Kathy -
The Ninth Amendment is the opposite of what you’re contending. It’s a catch-all that emphasizes that the rights of man are too numerous to enumerate.
I don’t agree with this at all.

If the rights of man are too numerous to enumerate, what is to stop — or more accurately, what *should* stop — the people from asserting and securing those rights through the government they have set up to so secure?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Seems crystal clear to me. The people are not to be denied rights they retain by virtue of being human, simply because those rights are not specifically listed in the Constitution. The right to an education that is equal in quality regardless of one’s social or economic rank in society is a right of man. Or at least, one can make that argument. And the people cannot be denied that right simply because a public education is not an enumerated power in the Constitution.
Now you’re asserting the existence of positive rights, like the "right" to an education. Take a look at the Constitution and especially the Bill of Rights. The rights in the Bill of Rights are all guarantees against the power of the central government. This is not an accident. Take a look at all of the quotes I’ve provided so far and there’s a consistent theme in favor of negative liberty. Look at the quote I just posted in my last comment. The Ninth and Tenth Amendments, and all the cites I’ve provided, all make perfect sense once you understand this; they are an attempt by people who feared central government power to maximize negative liberty.

A grant of power to establish a government school system is a power. A right is a guarantee against power. That also covers your next argument:
Section 9 is not exhaustive, nor is it intended to be so; it is rather a set of very specific restrictions on Congress that match up pretty well with the enumerated powers.
Didn’t say it was exhaustive or intended to be so — but since the authors of the Constitution did not see fit to forbid Congress from passing laws that mandate federal funding of public education, one can state with some confidence that public education is not disallowed by the Constitution. There is nothing in the Constitution that would make it unconstitutional.
But they did forbid Congress from doing so, first by not including it as a power, and then (three years later) by an explicit sweeping restriction of central government power, in the Bill of Rights.

What, by your view of rights, would be the purpose of the Tenth Amendment? It reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." If the central government has all "necessary and proper" powers to provide for anything not specifically prohibited, what were the Framers leaving to the states, exactly?
Hint, hint.

There’s no way you can read the arguments of the drafters of the Constitution, particularly Madison, and conclude that they meant to protect positive rights like the "right" to health care, the "right" to education, etc. These people were heavily influenced by Locke (the Declaration of Independence is pure Locke), and the rights to life, liberty, and property have that in common: they are negative rights.
And that, in turn, also applies to your next argument...
That’s debatable, but in any case, we do have an amendment process.
Why would the amendment process be needed for Congress to legislate and fund public education, or national health care or preserving wilderness, as just a few examples? There is nothing in the constitution that acts as a bar to such policies.
That all being said, I believe I’ve sufficiently answered the original charge that the provision of the general Welfare is a power. The topics of conversation are multiplying and veering in new directions. Where’s this going?
 
Written By: Bryan Pick
URL: http://www.qando.net
Where’s this going?
Into your checkbook.
 
Written By: JWG
URL: http://
Now you’re asserting the existence of positive rights, like the "right" to an education. Take a look at the Constitution and especially the Bill of Rights. The rights in the Bill of Rights are all guarantees against the power of the central government. This is not an accident. Take a look at all of the quotes I’ve provided so far and there’s a consistent theme in favor of negative liberty.

I’m familiar with the concept of "negative rights" and "positive rights," but I don’t buy it. Rights are rights; I simply don’t buy the idea that there is any meaningful distinction between negative and positive rights. I think it’s a false dichotomy. For one thing, so-called "positive rights," such as the right to an education or the right to a job or the right to adequate shelter, can just as easily be stated as negative rights. I have the right to see a doctor when I’m sick, or to have my child seen by a doctor if she is sick: a positive right. The government must refrain from supporting or allowing public policies that make it impossible for me to see a doctor if I don’t have the money to pay the doctor — a negative right.

Negative rights require positive action for their existence; i.e., enforcement. All that’s necessary for my right to free speech is for others to refrain from taking any action to prevent or stop me from speaking freely. But others don’t always so refrain. Enforcement is necessary. We have to pay for that with our taxes — of of us. Your taxes pay for my right to join a public rally against the Iraq war. And my right to join that rally is only as good or as real as the enforcement that backs it up.

We’ve seen what happens when government is allowed to intrude on negative rights with no sanction. We have seen how utterly meaningless and empty is the right, for example, to be secure in one’s person, home, and property — even though supposedly that right does not imply anyone else having to do anything, only that others should refrain from violating that security — when the central government decides and determines NOT to refrain from violating that security, and is not stopped or restrained because (a) the infringement is done secretly; (b) even when the secrecy is exposed, the central government announces its intention to ignore any attempt by the legislative or judicial branches to restrain the infringement; and (c) the people themselves allow the central government to infringe on key "negative" rights because true patriots trust their government to never take advantage of the power we allow them to usurp. Now *there’s* a concept the Founding Fathers would have found appalling, given that almost every word in the Constitution is rooted in the idea that governments cannot be given that kind of blind trust.

Any right, negative or positive, is only as good as the degree to which it is enforced. The entire Constitution and all the rights enshrined in it mean absolutely nothing and do not protect us from anything if we don’t stand up for those rights. That means enforcement, and enforcement means the active provision of personnel and the compulsory giving over of both time and money for that enforcement.

So-called positive rights are just as consistent with our American democracy as are so-called negative rights. In fact, they’re both essential. No free speech? No democracy. No religious freedom? No democracy? No right to the privacy of one’s own home or person? No democracy. But every bit as much: No publicly funded, universally available public education? No democracy. If only rich people can get an education, or if only rich people can get a quality education, there is no democracy. No right to mental and physical health? No democracy. If only rich people or people who are lucky enough to have a job that provides health insurance have access to what is needed to maintain physical and mental health; if millions of people are living with serious health problems that sap their capacity to be productive, aware, informed citizens, there is no democracy.

It’s really as simple as that. And these are circumstances that James Madison and Thomas Jefferson et al. could not possibly have foreseen.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com
Kathy, I have to start by replying first to the last thing you said.
And these are circumstances that James Madison and Thomas Jefferson et al. could not possibly have foreseen.
The country had seen uneducated and sick people (even uneducated, sick, white male landowners!) before 1787. They had seen crime. They had also seen oppressive government.
A nuclear bomb has qualities distinguishing it from a musket, but how is an uninsured or uneducated person today beyond the foresight of Madison or Jefferson (or Hamilton, for that matter)? Would Patrick Henry have qualified "Give me liberty or give me death!" if he had but foreseen the circumstances?

And one more aside, before the meat of my argument:
even when the secrecy is exposed, the central government announces its intention to ignore any attempt by the legislative or judicial branches to restrain the infringement
It’s improper to conflate the central government and the executive branch alone. Most of the problems with the executive branch stem from the breakdown in the separation of powers.
I’m familiar with the concept of "negative rights" and "positive rights," but I don’t buy it.
That’s too bad, because the Founders created a Constitution to which positive rights are toxic. I’ll explain further below.
Rights are rights; I simply don’t buy the idea that there is any meaningful distinction between negative and positive rights. I think it’s a false dichotomy. For one thing, so-called "positive rights," such as the right to an education or the right to a job or the right to adequate shelter, can just as easily be stated as negative rights. I have the right to see a doctor when I’m sick, or to have my child seen by a doctor if she is sick: a positive right. The government must refrain from supporting or allowing public policies that make it impossible for me to see a doctor if I don’t have the money to pay the doctor — a negative right.

[...]

Any right, negative or positive, is only as good as the degree to which it is enforced. The entire Constitution and all the rights enshrined in it mean absolutely nothing and do not protect us from anything if we don’t stand up for those rights. That means enforcement, and enforcement means the active provision of personnel and the compulsory giving over of both time and money for that enforcement.
The meaningful distinction is the initiation of force. A negative right is a claim against someone initiating force (coercion or fraud) against you. Enforcement of a negative right does involve coercion, but that’s the difference between murder and killing in self-defense, a distinction I think you’ll agree is a meaningful one. A country built on the principle of maximizing negative liberty would therefore be one that tried to minimize coercion and fraud.

A positive right is a claim that one may do something up to and including initiating force against someone else — a claim to another man’s life, liberty, and property. A positive right says that someone who has not initiated force against anyone else may have force initiated against him for another man’s benefit; in effect, that one man may be killed, enslaved or robbed (deprived of his life, liberty, or property, respectively) without having aggressed against anyone else. That is, a positive "right" is absolutely toxic to a negative right as soon as one lacks what the government says he has a claim to. It is thus critical to make a distinction between the two.

The Founders understood that distinction, and wrote it into the Constitution. The whole structure of the Constitution and the Bill of Rights bears out my argument: rights and powers mutually delineate each other, because rights are claims against power. The Constitution was an ordination of power to the central government to perform a limited task which includes the power to enforce certain laws within its limited scope of responsibility. The beauty of the Constitution is its presumption against power, i.e., its presumption of individual (negative) rights and the fact that it left the states largely to their own business. Read the quotes and links I’ve provided; read the whole Constitution over and read the Bill of Rights, particularly the last two amendments. Look at the history, how the states feared central government power and wanted that power to be sharply limited and defined. It’s all consistent with my argument.

What you called a negative right — "[t]he government must refrain from supporting or allowing public policies that make it impossible for me to see a doctor if I don’t have the money to pay the doctor" — is no such thing. It is a claim on the labor and/or property of others, a claim to initiate force against them when they will not voluntarily do what you want them to do.

When you say,
"So-called positive rights are just as consistent with our American democracy as are so-called negative rights. In fact, they’re both essential."
... I say, you have a different idea of American democracy than I can find in the Constitution. This constitutional republic with some representative-democratic characteristics was not founded to enshrine the initiation of force.

Democracy of one kind or another can exist, and outperform other systems of government, whether the populace has been (*shudder*) optimized for making better decisions within that system or not. We still have to make the same tragic trade-offs; democracy, whatever the form, is a method of conflict resolution, not an ideal. I have no reason to believe that such a republic is dependent on state education or the state provision of medical services (Your argument is "really as simple as that"?), and you bringing up that argument leads me to ask, again: where is this going?

This is intended respectfully, as a rhetorical question rather than as an ad hominem: are you arguing with me because you consider my position imprudent, or because you really think I’m wrong about the Founders, the Constitution, and the Bill of Rights? I’ve been firing off relevant sources left and right with seemingly little effect.
 
Written By: Bryan Pick
URL: http://www.qando.net
I’ve been firing off relevant sources left and right with seemingly little effect.
I’ve enjoyed reading it. I haven’t gone back to see what posts have addressed this topic, but I suspect any discussion of the Constitution is always helpful. You should consider a new post, especially considering that Kathy’s critique of positive/negative rights is a common tactic from the Left to change the meaning of the Constitution.
 
Written By: JWG
URL: http://
Negative: Congress shall make no law prohibiting the right of the people to receive health care.
versus
Positive: The people have a right to receive health care.

These two examples for health care are fundamentally different in how they would require the government to behave.

The negative right would require Congress to avoid acting against people seeking care while the positive right would require Congress to provide assistance to people in receiving care.

There is nothing false in that dichotomy.
 
Written By: JWG
URL: http://
Negative: Congress shall make no law prohibiting the right of the people to receive health care.
versus
Positive: The people have a right to receive health care.

These two examples for health care are fundamentally different in how they would require the government to behave.


Oh, I disagree, I definitely do. If that negative construction were true, then Congress would not be allowed to pass laws that privilege and favor private insurance companies over publicly funded health care initiatives. The president’s recent veto of the expanded SCHIP legislation is clearly and unarguably motivated by the ideological belief that people should have to pay whatever private insurance companies want to charge for premiums, under whatever conditions those companies want to impose. That is, in reality, and as a matter of fact, prohibiting many people from receiving health care.

And that’s just one example.

The country had seen uneducated and sick people (even uneducated, sick, white male landowners!) before 1787. They had seen crime. They had also seen oppressive government. A nuclear bomb has qualities distinguishing it from a musket, but how is an uninsured or uneducated person today beyond the foresight of Madison or Jefferson (or Hamilton, for that matter)?

There were no "uninsured" people in Madison’s or Jefferson’s day. There was no such thing as health insurance. There was no health care industry.

Being sick or uneducated in the 18th century was very different in the effect it had on the larger society and on the world (and vice versa) than it is now.

I realize the above might sound like I’m simply repeating what I already said, but I am flabbergasted at your response, to the point where I want to tell you that if you are actually asking me (implying that you don’t know) what the difference is, in terms of a significant effect on society at large, between an uneducated or badly educated citizenry today, or between a citizenry whose physical and mental health is subpar today, and what the larger societal effect would have been from those two conditions in the Founding Fathers’ time, then I don’t even know what to say. I mean, I don’t like or want to respond that way, but you seem to be unaware that social conditions such as education or health manifest differently, pose different challenges, and affect society in vastly different ways than they would have in the 18th century. If you are unaware of that, then it’s pointless to further discuss the point, because my assumptions about basic understanding are not justified.

I hate to sound snarky, but I don’t know how else to answer what you said! I just can’t believe you said it, or meant it as a genuine question.

Maybe I should just back off from further discussion on this. I don’t think it’s going to get anywhere.

Would Patrick Henry have qualified "Give me liberty or give me death!" if he had but foreseen the circumstances?

Bryan, there IS no liberty if a decent education is dependent on ability to pay and you can’t pay. There is also no liberty if you are constantly and continuously living in abject terror of not being able to survive in very basic ways. When you spend most of every waking hour for years and years and years unable to fall asleep because you cannot find a job, or you lost your job, or you have to work 3 jobs and you’re having a nervous breakdown, and you’re living in fear of being evicted, or of not being able to pay the rent, and your checking account is always overdrawn, and you literally have no money to buy even toilet paper, or do your laundry, much less buy food, although if you are lucky and live in an area where there are food pantries, that is at least something that will be a huge help, but you have to hope they don’t lose their funding, or experience such an increase in need that their current funding level is not enough. I don’t know if you have any clue what it feels like to live this way. If you don’t, you will have to trust me when I say that having to live this way is not living free, and you don’t feel free, either.

And in answer to your question about whether I consider your question imprudent, or really think you’re wrong about the Founders, the Constitution, and the Bill of Rights, my answer is: both. You have been "firing off relevant sources left and right," that is true to a point, but what you don’t appear to appreciate is that the sources you fire off, while relevant, have been chosen by you because they support your point. That does not make them invalid. But it does ignore the fact that your points are not universally accepted, that there is disagreement, that your views are challenged by many people who also can point to relevant sources. I think that’s the bottom line.

I do think I’m going to quit this particular discussion. It’s not going anywhere productive, and is unlikely to do so, I think.

I do appreciate it for what it was, though. You’re smart and a good writer, and it’s always fun to debate with someone like that.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
When you spend most of every waking hour for years and years and years unable to fall asleep...

ROFL! That didn’t make much sense, did it? Probably means I need to get some sleep. Just to clarify, what I meant to express there was the idea of spending every waking hour worrying about, etc., and being unable to sleep at night for fear of, etc.

It would definitely be hard to fall asleep if you were spending every waking hour trying to do so. :-)
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Kathy -

If you’re going to cut it off here, I guess that makes this the last word. I do appreciate the compliments.
There were no "uninsured" people in Madison’s or Jefferson’s day. There was no such thing as health insurance. There was no health care industry.
Let’s lay aside, as semantics, the fact that no health insurance implies that there were, in fact, uninsured people. My point was that many people were insecure in their health in the Framers’ day, too.
Being sick or uneducated in the 18th century was very different in the effect it had on the larger society and on the world (and vice versa) than it is now.
To whatever extent you’re correct (and I think you overstated the argument), I don’t see how that changes the Constitution.

You claimed that without a (positive) right to physical and mental medical services, or to a tax-funded universal education, that we could not have American democracy. I made a modest claim: that the country had no shortage of (by modern standards) uneducated and unhealthy people at the time of the passage of the Constitution, and I’d further claim that with a fairly limited federal government, the country nevertheless flourished and grew vibrantly for decades. People clawed out of poverty in unprecedented numbers. I’m not saying it was perfect, not by any means... but it wasn’t so different that positive rights took on a fundamentally different nature.
Bryan, there IS no liberty if a decent education is dependent on ability to pay and you can’t pay. There is also no liberty if you are constantly and continuously living in abject terror of not being able to survive in very basic ways. [ etc. ...] I don’t know if you have any clue what it feels like to live this way. If you don’t, you will have to trust me when I say that having to live this way is not living free, and you don’t feel free, either.
I can’t claim I know what that’s like. The way I see it, looking at the wide world, I’m far from truly rich, and much further from truly poor. But I won’t take your word for it ("trust me": two words that set off alarm bells every time) when you say it’s not living free.

Having only hard choices because of wretched circumstance or because you’ve made poor decisions in the past is not the same as having no choices, or having your choices forcibly curtailed. Poverty is tragedy, but robbery is crime.
There’s always been a qualitative difference between pauper and slave. What separates them isn’t a decent education, but negative liberty.
And in answer to your question about whether I consider your question imprudent, or really think you’re wrong about the Founders, the Constitution, and the Bill of Rights, my answer is: both. You have been "firing off relevant sources left and right," that is true to a point, but what you don’t appear to appreciate is that the sources you fire off, while relevant, have been chosen by you because they support your point. That does not make them invalid. But it does ignore the fact that your points are not universally accepted, that there is disagreement, that your views are challenged by many people who also can point to relevant sources. I think that’s the bottom line.
I think that my wide choice of sources (drafters, presidents, Supreme Court justices, the texts themselves) is more than merely convenient, and that I answered to others’ sources (e.g., Butler, and Article I Section 9). I think I’ve produced a reasoned argument that takes into account the written words of the most directly involved Framers, the text and structure of the entire Constitution, the Bill of Rights, secondary (but directly relevant) sources from the early republic, and the history of the early United States. I highlighted whole passages that directly contradicted the arguments of my interlocutors. If that doesn’t at least give my opponents pause, and doesn’t get them to seriously weigh the consequences of the evidence arrayed, I don’t know what will.

’Til next we meet.
 
Written By: Bryan Pick
URL: http://www.qando.net
Oh, I disagree, I definitely do. If that negative construction were true...
What?

Of course it’s not true. It’s not actually in the Constitution.

You used a health care issue to try to compare negative and positive rights and made a very poor analogy.

I just made the correct comparison using YOUR example. I could have just as easily used a different topic to make the point.

Negative: Congress shall make no law prohibiting the right of the people to dance the jig.
versus
Positive: The people have a right to dance the jig.

Now let’s take the case of a person unable to use their legs. Does the negative right require Congress to help this person physically to dance?

There is a clear dichotomy.
 
Written By: JWG
URL: http://
Of course it’s not true. It’s not actually in the Constitution.

The sentence opening to which you refer was a bit unclear, although I do not think, looking at it now, that it was SO unclear that you could actually think that I actually think that provision is in the Constitution. If only.

In any case— what I meant, of course, and should have written, was: "If that negative construction were in the Constitution..." I meant the word "true" as shorthand for "a real, actual provision in the Constitution," or "If it were true that that provision was in the Constitution..."

I apologize for the confusion.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
But I won’t take your word for it ("trust me": two words that set off alarm bells every time) when you say it’s not living free.

LOL, point well made. Those alarm bells ring in my head too when someone uses that phrase with me. It was just using a lazy cliche on my part.

I can only vouch for the validity of my experiences and the experiences of those whom I know and whose recorded accounts I find credible.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
I can only vouch for the validity of my experiences and the experiences of those whom I know and whose recorded accounts I find credible.

I want to amend this. It does not express my meaning as clearly as I would have liked.

Amended: I can only vouch for the validity of my own experiences and for the validity of my own observations (in the broadest sense of that word).
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
I do not think, looking at it now, that it was SO unclear that you could actually think that I actually think that provision is in the Constitution.
You took an example of a hypothetical right and argued that you disagreed because of what Congress and the president are doing in real life.

You haven’t addressed the points of either example I gave.
 
Written By: JWG
URL: http://
You said now: You haven’t addressed the points of either example I gave.

Referring to what you said before:

Negative: Congress shall make no law prohibiting the right of the people to receive health care.
versus
Positive: The people have a right to receive health care.

These two examples for health care are fundamentally different in how they would require the government to behave.


I answer again as I did before (with some modifications, in boldface, to address prior lack of clarity):

Oh, I disagree, I definitely do. If there were such a provision in the Constitution, then Congress would not be allowed to pass it would be unconstitutional for the president to favor the interests of private insurance companies over the interests of individuals seeking health care — which is exactly what he did (by his own acknowledgment) when he vetoed the expanded SCHIP legislation. That veto, done for purely ideological reasons, will prevent many people from getting health care.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
First of all, since a veto prevents a bill from becoming a law, it would not be considered unconstitutional.

In other words, a law can be unconstitutional. A veto cannot.

Secondly, if the negative right about health care was in fact real, then as soon as Congress started making laws to help people aquire health care we could find all sorts of ways in which Congress was acting against the intent of the negative right.

Furthermore, not helping is not the same thing as preventing. That is, unless you are ONLY concerned with the ends rather than the means.

If I don’t help a man with no legs dance the jig (if I may go back to the second hypothetical right), I am not preventing him from doing so. Yet, if we go ahead and use taxes to help him dance, you may be able to demonstrate that by not also helping the man with one leg I am preventing him from dancing alongside the first man. (I am preventing the second man access to the funds available to the first man).

Hence, we see a perfect example of the slippery slope when it comes to using the government to go beyond its stated intent.
 
Written By: JWG
URL: http://
I have to ask a question in response to this below:

I made a modest claim: that the country had no shortage of (by modern standards) uneducated and unhealthy people at the time of the passage of the Constitution, and I’d further claim that with a fairly limited federal government, the country nevertheless flourished and grew vibrantly for decades.

And what about the rest of the world? Assuming your agreement (and tell me if you don’t agree) that (a) there were, in the 18th century as there are now, vast swaths of the American populace who were in chronic poor health because they could not afford health care; and further assuming your agreement that (b) there were, in the 18th century as there are now, vast swaths of the American populace who are functionally illiterate and who do not possess the minimal skills needed to function at a high level in society (not just reading and writing, but understanding of history, geography, political systems, mathematics, science, etc.) then (c) how would you say those conditions affected the United States’s interests as a nation vis a vis the rest of the world in the 18th century?

Poverty is tragedy, but robbery is crime.

I don’t disagree with that. In fact, that’s one of the reasons I consider the last four years of U.S. policy toward and in Iraq a crime.

There’s always been a qualitative difference between pauper and slave. What separates them isn’t a decent education, but negative liberty.


1) Certainly, it’s worse being a slave than being a pauper. But slavery and freedom are not always two distinctly separate and opposite states of being — at least, not if you are using the term "slavery" in a literal rather than a figurative sense. By way of example, consider former slaves and the descendants of former slaves in the United States during the century between 1865, when slavery ended, and 1968, when the civil rights movement ended. Were black Americans living in the South in that 100-year period enslaved? The answer is no. They were not slaves. But were they free? The answer is also no, or at least a qualified no. They were free in a literal sense, in that they were no longer property in law. But they were not free in any truly meaningful sense of that word. I assume I needn’t elaborate on what it was that made them not free.

Similarly, living in poverty or in constant financial insecurity is not equivalent to living in slavery. I don’t think anyone would argue that it is. But freedom is both law and experience. And a person who has to choose between eating or paying the rent does not feel free. Especially if economic and social arrangements in the larger society make it objectively, materially more difficult to get out of the financial hole even when trying as hard as s/he can, maybe for years.

If you’re going to cut it off here, I guess that makes this the last word.

Was that meant as reverse psychology? If so, it worked.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Secondly, if the negative right about health care was in fact real, then as soon as Congress started making laws to help people aquire health care we could find all sorts of ways in which Congress was acting against the intent of the negative right.

Congress needn’t make laws to help people acquire health care. At the same time, it shouldn’t make laws that make it harder for people to get health care. And if it’s going to do the latter, then it will have to do the former as well. Private insurance companies have every right to exist and to operate. But there is no good reason why the government has to privilege their right to make a profit over the people’s right to obtain affordable health care.

I know this has been said before, but it bears repeating: Stating a right in the negative does not imply that it is illegitimate to state it in the positive.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Stating a right in the negative does not imply that it is illegitimate to state it in the positive.
I don’t believe that argument has been made.

Both forms are a legitimate way to determine rights. However, they create different obligations from the government. That is why the rights within the Constitution are formed as negatives.
Congress needn’t make laws to help people acquire health care.
So SCHIP is not necessary?
it shouldn’t make laws that make it harder for people to get health care. And if it’s going to do the latter, then it will have to do the former as well.
I believe you just argued my point. As soon as the government goes beyond a negative restriction (i.e. make no law...) and makes laws to actively assist a certain group of people, then the assistance must continue to expand.

In other words, when government acts to secure a positive right, the requirements for government action become limitless.
 
Written By: JWG
URL: http://
Both forms are a legitimate way to determine rights. However, they create different obligations from the government. That is why the rights within the Constitution are formed as negatives.

The rights within the constitution were framed as negatives because, as you and others said earlier, the Founding Fathers were profoundly aware of the need to limit the powers of a central government. They knew that governments cannot be trusted with unlimited, unchecked power, no matter how benevolent they may appear to be.

Nowadays that is not so much the fear it used to be. In fact, it’s rather the reverse, in that people now tend to believe that citizens should trust that their government knows what is best for them and that what their government does, even if it infringes on those negative liberties in the Constitution,is for their own good, is being done for appropriate reasons, and is not going to be abused.

I think the distinction now is in how Americans define dictatorial powers. Some people feel that allowing the central government to collect taxes to pay for public education or to pay for programs that ensure no one is left without health care because of inability to pay constitutes dictatorial powers. Others feel that allowing the central government to enter your home or office, or read your e-mails or collect information on the people you call, and on the people they call, constitutes dictatorial powers. I am of the second school of thought. Oddly enough, the two groups never seem to connect. Either you believe that public education and government-subsidized health care is tyranny, or you believe it’s an example of government making life better for people. By the same token, either you believe that entering a private home or reading personal communications without probable cause or a search warrant is a horrendous violation of constitutionally guaranteed liberties, or you believe that the violation of negative rights in this case is necessary to keep us all safe.

So SCHIP is not necessary?

You ignored the rest of my sentence, didn’t you, you naughty little boy?

As soon as the government goes beyond a negative restriction (i.e. make no law...) and makes laws to actively assist a certain group of people, then the assistance must continue to expand.

Yes, which is why the central government’s active assistance of the private insurance industry makes it necessary to pass laws like SCHIP that help the millions of Americans who cannot pay the exorbitant premiums charged by those private insurers to pay for necessary medical care.

In other words, when government acts to secure a positive right, the requirements for government action become limitless.

Wrong. Said requirements are limited by the scope of the right or the liberty. Government is required to act when the positive right is being violated.
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
I made a modest claim: that the country had no shortage of (by modern standards) uneducated and unhealthy people at the time of the passage of the Constitution, and I’d further claim that with a fairly limited federal government, the country nevertheless flourished and grew vibrantly for decades.
And what about the rest of the world? Assuming your agreement [that many Americans were sick and uneducated then and now...] how would you say those conditions affected the United States’s interests as a nation vis a vis the rest of the world in the 18th century?
Unless vague national interests have some effect on negative vs. positive rights, you’re changing the subject. Have changes since 1787 nullified the distinction of the initiation of force, or not?
Poverty is tragedy, but robbery is crime.
I don’t disagree with that.
How do you square that with your domestic politics?
There’s always been a qualitative difference between pauper and slave. What separates them isn’t a decent education, but negative liberty.
1) Certainly, it’s worse being a slave than being a pauper.
And the reason for that is that a pauper faces hard choices, while a slave is in a perpetual emergency of coercion.
Were black Americans living in the South in that 100-year period enslaved? The answer is no. They were not slaves. But were they free? The answer is also no, or at least a qualified no. They were free in a literal sense, in that they were no longer property in law. But they were not free in any truly meaningful sense of that word. I assume I needn’t elaborate on what it was that made them not free.
They were more free than slaves, and less free than they could have been if coercive laws hadn’t been in effect. It would probably be better to talk specifics in this case, since you have a different idea of liberty than I do.

I’m not saying positive liberty is a sham, or that it’s undesirable. I’m saying that it’s not something to be accomplished through theft or any other aggressive compulsion.
Similarly, living in poverty or in constant financial insecurity is not equivalent to living in slavery. I don’t think anyone would argue that it is. But freedom is both law and experience. And a person who has to choose between eating or paying the rent does not feel free.
No? And what if he were denied the choice? I have a problem with being compelled (becoming truly less free) to make someone feel free.
Especially if economic and social arrangements in the larger society make it objectively, materially more difficult to get out of the financial hole even when trying as hard as s/he can, maybe for years.
Let’s talk about which of those "arrangements" are coercive, and which are just other people transacting voluntarily.
-=-=-=-=-=-=-=-=-
JWG -
Stating a right in the negative does not imply that it is illegitimate to state it in the positive.
I don’t believe that argument has been made.

Both forms are a legitimate way to determine rights. However, they create different obligations from the government. That is why the rights within the Constitution are formed as negatives.
I will make that argument. Stating a negative right as a positive right is illegitimate. A positive right implies the initiation of force. A negative right is a claim against the initiation of force.
Try stating one as the other.
 
Written By: Bryan Pick
URL: http://www.qando.net
Unless vague national interests have some effect on negative vs. positive rights, you’re changing the subject. Have changes since 1787 nullified the distinction of the initiation of force, or not?

Sigh. Today there is a global context and significance to everything we do, Bryan. It’s not good for us to be functionally illiterate, undereducated ignoramuses, or fighting poor health and chronic illness all the time for lack of financial resources in today’s world, Bryan. So universal quality public education is not just a social good anymore; it’s in our national interest to do all we can to ensure an educated, knowledgeable populace. Public health is not just a social good; it’s a national security issue now. We are living in a world of pandemics, Bryan. We are living in a world where an obscure killer disease in Africa or Asia could have global consequences. We need to be as healthy as possible. It’s in our national interest to have top-flight and comprehensive public health programs. Hence, "positive rights" like public education and programs to enable people who can’t afford health insurance to still get health care.

This seems like a no-brainer to me. Not to you, I realize.

How do you square that with your domestic politics?

Allow me to add my second sentence, which you omitted: "In fact, that’s one of the reasons I consider the last four years of U.S. policy toward and in Iraq a crime."

It’s a crime, because it’s robbery. Every need this country has is being ignored or neglected to pay for the war. And it’s coming out of my pocket, against my will. That’s robbery.

And the reason for that is that a pauper faces hard choices, while a slave is in a perpetual emergency of coercion.

And your point is? I already said slavery is worse than poverty. That said, poverty is a terrible thing, and it does greatly limit one’s freedom and one’s choices. That’s an important point. Poverty is self-reinforcing and very hard to get out of because having no financial resources in and of itself rules out certain choices one might want to make to get out of poverty.

Also, having to choose between food and shelter is not a "hard choice." It’s an impossible choice.

It would probably be better to talk specifics in this case, since you have a different idea of liberty than I do.

No political rights, such as voting or owning property. No free speech rights. Can’t live where you want, go to school where you want (or go to school at all). Every aspect of daily life is controlled and circumscribed: where you can walk, eat, drink water, shop, etc. What you can say and what you can’t say. How you are permitted to say the things you are allowed to say. How you hold your body; your body language. Your mannerisms. Your facial expressions. Make a mistake with one of these, and it could mean your life or the life of a family member. The freedom to live itself: living in constant fear and terror: lynchings, beatings, rape, murder, torture and mutilation, all with no accountability of any kind if you were black. This is what daily life was like for black Americans throughout the century after the Civil War, with a brief period of relative freedom during Reconstruction.

I’m saying that it’s not something to be accomplished through theft or any other aggressive compulsion.

Who said it was? Unless you believe that paying taxes to pay for public services and to protect rights and liberties guaranteed in law is theft and aggressive compulsion. I don’t believe that it is.

And what if he were denied the choice? I have a problem with being compelled (becoming truly less free) to make someone feel free.

I have a problem with being compelled, too. Nevertheless, I *am* compelled, in any number of very real ways, to make others’ ideas of freedom come about. We are all compelled to support, with our taxes, with our laws, with our public policies, what we decide is in the common good. We may not agree on how to define the common good, but the concept in and of itself of being compelled to support policies or laws that will not necessarily benefit you as an individual but do in some way benefit us as a nation is at the heart of democracy. It’s called living in society. It’s called living together as Americans. We have obligations to each other as people with one national identity and living as a people together.

Let’s talk about which of those "arrangements" are coercive, and which are just other people transacting voluntarily.

The kind of economic and social arrangements I am talking about are not necessarily "people transacting voluntarily." They are the result of economic, political, and social policies and priorities that are either supported or not supported by the government. They don’t happen by accident or chance. They are *encouraged* to happen by thought-out, intentional, deliberate decisions by people in government and in business.

Stating a negative right as a positive right is illegitimate. A positive right implies the initiation of force. A negative right is a claim against the initiation of force.

That is absolute nonsense — in my view, of course. Every negative right in the Bill of Rights implies the initiation of force.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Remember that judge who insisted on putting the Ten Commandments inside his courthouse? Remember how he was not allowed to do that? That’s the initiation of force.

Try stating one as the other.

Didn’t JWG do that earlier with access to health care? Or was that you?
 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/
Kathy - I probably will not have time to continue this debate after this comment, so I suppose I’d better make this as thorough as I can and cede the last word to you. I may, on the other hand, create a front-page post on some of this material, as JWG suggested.

First I’ll respond to one thing from your post-before-last.
Nowadays that is not so much the fear it used to be. In fact, it’s rather the reverse, in that people now tend to believe that citizens should trust that their government knows what is best for them and that what their government does, even if it infringes on those negative liberties in the Constitution,is for their own good, is being done for appropriate reasons, and is not going to be abused.
That, to me, is a discouraging sign, to whatever extent it’s true. I recall a quote about the proper concept of democracy from Frank Herbert in Chapterhouse: Dune.

Duncan: "Have they taught you about democracy?"
Miles: "Yes, sir. That’s where you vote for—"
Duncan: "That’s where you distrust anyone with power over you!"


Perhaps that will remind you of part of our own conversation. :)
Unless vague national interests have some effect on negative vs. positive rights, you’re changing the subject. Have changes since 1787 nullified the distinction of the initiation of force, or not?
Sigh. Today there is a global context and significance to everything we do, Bryan. It’s not good for us to be [...] fighting poor health and chronic illness all the time for lack of financial resources in today’s world, Bryan. [...] Public health is not just a social good; it’s a national security issue now. We are living in a world of pandemics, Bryan. We are living in a world where an obscure killer disease in Africa or Asia could have global consequences. We need to be as healthy as possible. It’s in our national interest to have top-flight and comprehensive public health programs. Hence, "positive rights" like [...] programs to enable people who can’t afford health insurance to still get health care.
Now, come on: you didn’t come to favor a federal program to subsidize broad medical services and insure everyone because you reasoned it was necessary to stave off pandemics, perhaps the most plausible public health issue that reaches beyond the individual or perhaps local level. You’d be recommending a beefed-up CDC operating in tandem with something like (a competent) FEMA.

"We" don’t need to be as healthy as possible. Everyone, including you, trades off safety for other things, because they understand implicitly that health (and especially the medical services part) is not a categorical good, but an incremental trade-off. As individuals, how many Americans don’t choose to forgo medical services and healthy activities in favor of other things? That says something about our values.

Chronic illness and poor health existed in 1787. If anything, we had more pandemics before our wealth and technology (I’d say it was mostly basic sanitation and clean food and water) helped us escape most of them. They weren’t "good for us" in the 18th century either, and Americans had fewer "financial resources" to handle the problem than we have now.

Your argument is an argument from prudence, but (aside from my own prudential argument that the federal government sucks at medicine and education) you can’t reinterpret the initiation of force out of the structure of the Constitution because it is seemingly convenient to do so. The most important and necessary aspect that made the Constitution an effective check on government relies on the consistent distinction between powers and rights. I’m not a big fan of granting more power to government, but until the Constitution was gutted, there was an established and proper process for amending it in a way that didn’t do damage to the federal system of government and which reflected a strong consensus rather than a political insurgency or a momentary shift in the political winds.
Poverty is tragedy, but robbery is crime.
I don’t disagree with that.
How do you square that with your domestic politics?
Allow me to add my second sentence, which you omitted: "In fact, that’s one of the reasons I consider the last four years of U.S. policy toward and in Iraq a crime."
It’s a crime, because it’s robbery. Every need this country has is being ignored or neglected to pay for the war. And it’s coming out of my pocket, against my will. That’s robbery.
I left it out because if you believe it to be true as a principle, it doesn’t apply exclusively to Iraq. I’ll ask again: how do you square your belief that robbery is crime with your domestic politics?
And the reason for that is that a pauper faces hard choices, while a slave is in a perpetual emergency of coercion.
And your point is? I already said slavery is worse than poverty.
I thought it was important to establish the reason.
That said, poverty is a terrible thing, and it does greatly limit one’s freedom and one’s choices. That’s an important point. Poverty is self-reinforcing and very hard to get out of because having no financial resources in and of itself rules out certain choices one might want to make to get out of poverty.
I don’t deny that starting out with wealth can be a great big leg up (it can also make you lazy and unappreciative of how wealth is created). Yes, a lack of wealth limits your means to accomplish many things. But may I remind you that in the 19th century, Americans rose out of poverty in incredible numbers, rising from nothing. People could not have flocked to America in such numbers and enriched this country so much so quickly if they hadn’t been creating an astonishing amount of wealth. But something more needs to be said of wealth and liberty that I wish I had brought up earlier, the words of yet another man who helped found America:

"If ye love wealth better than liberty, the tranquillity of servitude than the animating contest of freedom—go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen!"
— Samuel Adams, "On American Independence," at the State House in Philadelphia, August 1, 1776

That speaks to a profoundly different set of beliefs than the one you’ve presented here.
Also, having to choose between food and shelter is not a "hard choice." It’s an impossible choice.
No, it’s not. I’d choose food. I’d be uncomfortable, probably miserable, but I’d be alive. A man can survive on a lot less than what we call "decent" today, and if he could contract freely with anyone on whatever terms he found agreeable, it’s a rare man that I don’t think could make his way back to "decent" somewhere in this country. If many millions of people hadn’t lived in appalling conditions and subsequently raised themselves and their families out of poverty, I could see where you’re coming from, but think about history: human beings have made that choice.
And by God, considering how rare that choice must be in America today, you don’t think you could chalk up enough charity to make it unnecessary? You have to take money away from people and fund big distributionary schemes?

And are the people you’re talking about, most of them, really going to have to make those choices?
It would probably be better to talk specifics in this case, since you have a different idea of liberty than I do.
No political rights, such as voting or owning property. No free speech rights. Can’t live where you want, go to school where you want (or go to school at all). Every aspect of daily life is controlled and circumscribed: where you can walk, eat, drink water, shop, etc. What you can say and what you can’t say. How you are permitted to say the things you are allowed to say. How you hold your body; your body language. Your mannerisms. Your facial expressions. Make a mistake with one of these, and it could mean your life or the life of a family member. The freedom to live itself: living in constant fear and terror: lynchings, beatings, rape, murder, torture and mutilation, all with no accountability of any kind if you were black. This is what daily life was like for black Americans throughout the century after the Civil War, with a brief period of relative freedom during Reconstruction.
Ah, okay. Most of that which they lacked would be protected under a proper night watchman state. Obviously, living where you want, eating wherever you want, and going to school where you want would depend on the proprietors of those businesses wanting to do business with you on mutually agreeable terms.

And actually, while I’m not going to downplay the significance of the reforms in the 1960s, would you object to the assertion that some of those well-intentioned policies hurt their intended beneficiaries more than they helped?
Let’s talk about which of those "arrangements" [that make escaping poverty difficult] are coercive, and which are just other people transacting voluntarily.
The kind of economic and social arrangements I am talking about are not necessarily "people transacting voluntarily." They are the result of economic, political, and social policies and priorities that are either supported or not supported by the government. They don’t happen by accident or chance. They are *encouraged* to happen by thought-out, intentional, deliberate decisions by people in government and in business.
All right, let’s separate them into coercive and non-coercive:

* policies supported by the government - Coercive. Subsidies, controls and regulation can indeed forcibly prevent people from escaping poverty.
* policies not supported by the government - Non-coercive. They’re just keeping their hands to themselves.
* deliberate decisions by people in business - Depends. Sometimes firms commit fraud, and sometimes they commit coercion. I can support going after them for that.
I’m saying that [positive liberty is] not something to be accomplished through theft or any other aggressive compulsion.
Who said it was? Unless you believe that paying taxes to pay for public services and to protect rights and liberties guaranteed in law is theft and aggressive compulsion. I don’t believe that it is.
5:30 a.m. is way too late to get into this, especially when I’ve spent all this time trying to explain that many of the things you call "rights" are not enshrined in the supreme law of the land. You have alluded to others disagreeing with me and having relevant sources of their own, but you — an individual thinker who has to provide reasoned arguments of her own — have not posted here any reason to believe otherwise. You have argued that the negative-rights position is imprudent, but where is the evidence that it is not ordained by the Constitution and Bill of Rights, that it was not what the Framers had in mind?

But this point is a matter of definition: when I write the words "aggressive" and "compulsion," those are triggers for concepts that are definitely in play here. As for "theft", that’s based on my argument that the takings under color of "positive rights" are unlawful.
There are some functions of government for which I don’t terribly mind paying, but I don’t pretend that I’m not being threatened with overwhelming force if I don’t cough up the money. There’s no need to deny the basic fact of what’s going on there.
When you don’t pay the taxes you’re due, the authorities do something. You have not initiated force against them, so if that "something" involves compulsion, is that not initiating force? And if the initiation of force to make you do or give up something is not aggressive compulsion, what is it?
Stating a negative right as a positive right is illegitimate. A positive right implies the initiation of force. A negative right is a claim against the initiation of force.
That is absolute nonsense — in my view, of course. Every negative right in the Bill of Rights implies the initiation of force.
They are all claims against the initiation of force. Throughout the Constitution, we don’t see prescriptions for preventive law, but retaliatory force. No ex post facto laws, no presumption of guilt... in fact, every article of due process is designed to prevent such wrongful action. In the Bill of Rights, you see a long list of things the central government may not do: Congress shall make no law, the right of the people shall not be infringed, no soldier shall without consent, no warrants shall issue, no person shall be held, etc. That’s the point: claims against power. Hence the argument (at the time) against the Bill of Rights that it was unnecessary, because they were claims against powers not enumerated in the Constitution. All implied uses of force (as in obtaining compulsory witness in criminal trials) are to counter still greater initiations of force.

You cite the judge who brought the Ten Commandments into the courtroom. Do you think that forceful action against him was sanctioned by the Constitution or Bill of Rights?
Try stating one as the other. [negative right and positive right]
Didn’t JWG do that earlier with access to health care? Or was that you?
The way I see it, he was posing two entirely different things for contrast, not comparison. A negative right has no statement as a positive right; a positive right cancels out negative liberty.
And what if he were denied the choice? I have a problem with being compelled (becoming truly less free) to make someone feel free.
I have a problem with being compelled, too. Nevertheless, I *am* compelled, in any number of very real ways, to make others’ ideas of freedom come about.
Subtract the threat of overwhelming force. What compels you after that is entirely your business, and (to borrow a founder’s words) that neither picks my pocket nor breaks my leg.
We are all compelled to support, with our taxes, with our laws, with our public policies, what we decide is in the common good.
Who is that last "we"? Is that enough of a majority to pass an amendment?
We may not agree on how to define the common good, but the concept in and of itself of being compelled to support policies or laws that will not necessarily benefit you as an individual but do in some way benefit us as a nation is at the heart of democracy.
If you can stomach a bit of Ayn Rand, that’s the collectivist idea all wrapped up: man as sacrificial animal.
When Americans declared their independence, they wasted no time declaring that all men have inalienable rights, and that governments are instituted to secure those rights. It’s not about vaguely-defined benefit. Democracy, again, is a conflict-resolution system, not an ideal. If it tends toward naked majoritarianism, and serves to trade away individual rights rather than secure them, it has betrayed its purpose in America.
It’s called living in society. It’s called living together as Americans. We have obligations to each other as people with one national identity and living as a people together.
The American national identity is one based on political values; as G.K. Chesterton put it, "America is the only nation in the world founded on a creed." If you and I disagree on the most fundamental assumptions about man and liberty, what do we share but territory?
I don’t want to summon images in your mind of civil war. I do love America, and I don’t sneeze at the accomplishments of the people of this country even in the hours when liberty has been trampled. But it does create something of a cleavage between you and me, it makes a menace of my well-intentioned neighbors, and I am deeply troubled by this division, and by what caused it.

’Til next we meet.
 
Written By: Bryan Pick
URL: http://www.qando.net
I’ll ask again: how do you square your belief that robbery is crime with your domestic politics?

There’s nothing to square. Robbery is taking what belongs to someone else by force, but I don’t view the collection of taxes to pay for programs and services that are in the national interest or that constitute a social or public good as robbery. I view it as an investment that benefits everyone, even those who don’t make direct use of it. In a sense, it’s like I, along with millions of other Americans, are paying the government to give back value for our money in the form of essential and/or important public benefits that none of us could pay for as individuals, but that benefit all of us, *even if we don’t need or use them at any given time, as individuals.* Wouldn’t you say, for example, that a public library is a social good for the community in which it exists, even for those who never step foot in it? Another example: My daughter benefited from the excellent education she got at her public high school. She is now a freshman at Barnard College, and although she deserves tons of credit for that — she worked very hard to get where she is — the quality of education she received was also a tremendous advantage. The school she went to is well-known, in a very favorable way, to college recruiters. So paying taxes for that public education benefited my family specifically. But even now that Maggie is in college, and no longer uses the public schools, there is STILL a benefit to me in funding them with my taxes. It is in my self-interest to live in or near a community with such excellent public schools, and it is in my self-interest that other young people be educated as well as my daughter has been.

On the other hand, I do feel that the portion of my money that goes to Iraq, and to the so-called "war on terror" in general, is forcibly stolen from me, because I never get any return on that investment — so it’s *not* an investment. The military occupation of Iraq — I shouldn’t even call it a war, because it isn’t a war anymore — benefits no one except for the defense industry, oil companies, and those people in this administration who are ideologically invested in an imperial presidency with no meaningful checks on its power. It’s not seeing my money collected by the government that bothers me — it’s seeing my money taken from me for the narrow self-interest of relatively small groups of people, rather than for purposes that benefit a broad spectrum of society.

And are the people you’re talking about, most of them, really going to have to make those choices?

Yes. Millions of Americans are faced with those choices every day. That’s a fluid number that is constantly shifting, but it’s pretty much undisputed these days that a significant percentage of the U.S. population has trouble paying for basic needs and making ends meet. It’s not uncommon at all; in fact, it’s quite unremarkable in terms of how many families are affected.

... while I’m not going to downplay the significance of the reforms in the 1960s, would you object to the assertion that some of those well-intentioned policies hurt their intended beneficiaries more than they helped?

I can’t think of any offhand about which I would say that was true.

You have argued that the negative-rights position is imprudent, but where is the evidence that it is not ordained by the Constitution and Bill of Rights, that it was not what the Framers had in mind?

It may indeed be what the Framers had in mind, but that does NOT mean it was "ordained" by the Constitution or the Bill of Rights. The Framers did not rule out the possibility that future generations would regard the subject of freedom as an ongoing, living, evolving debate and discussion. And they did not put anything in the Constitution that would proscribe Americans in the 21st century from having such a discussion and acting on it. The choice of parsing liberty in negative language was a philosophical preference; not a mandate for all time.

The Framers may have viewed the proper role of government to be refraining from putting obstacles in the way of the people’s defined rights. In that view, as long as the government does not actually make laws that act as a check on guaranteed liberties, those liberties are retained.

I view the proper role of government — and many other contemporary thinkers do as well — to be actively protecting or safeguarding the people’s defined rights. In this view, even if the government does not pass laws that restrict the people’s freedom, that freedom can still be violated by the behavior of institutions and societal arrangements. Of what value is having the right to vote if violations of that right are only defined by whether the government passes a law saying, "You can’t vote"? In the South before the civil rights movement, it was not *illegal* for black people to vote. There were no actual laws on the books directly barring black Americans from voting. The disenfranchisement was accomplished through a combination of (a) local laws that imposed obstacles to voting that were insuperable for blacks, but no obstacle at all for most whites and (b) terror. In many places in the South before the 1960s, even expressing the desire to vote if you were black could get you murdered. But in a system that defines liberty in purely negative terms, there really is no role for government in these circumstances, and as far as it concerns Americans who are not personally affected (i.e., who are not black), liberty is intact.

This sort of system might have worked in the Founders’ days, but it does not work as well now.

There are some functions of government for which I don’t terribly mind paying, but I don’t pretend that I’m not being threatened with overwhelming force if I don’t cough up the money. There’s no need to deny the basic fact of what’s going on there.

Well yes, that’s true. Taxes are mandatory. If you refuse to pay them, you go to jail or face some other onerous consequence. Governments don’t tend to function too well without money — same as individual people, really. If you buy the concept that people could not live together in societies without government, then you have to deal with the fact of taxes. That’s the way it goes. If you object to paying taxes so deeply that you regard it as analogous to being violently mugged, then you need to choose another living arrangement for yourself — like maybe moving to a deserted island in the South Pacific, or living in a cave somewhere.

I don’t really mean to be harsh; it’s just that this is the reality, and I guess for some it’s a harsh reality. I personally would not want to live with large numbers of other people in society without government. I’d be scared.

In the Bill of Rights, you see a long list of things the central government may not do: Congress shall make no law, the right of the people shall not be infringed, no soldier shall without consent, no warrants shall issue, no person shall be held, etc.

Right you are. But anyone other than government CAN infringe on the rights of the people, and, in your philosophy of liberty, there’s not a darn thing the government can do about it. Or would want to do. The people’s rights — or certain people’s rights — can be violated or infringed up the wazoo and with total impunity, just as long as it’s not government that does it. That, apparently, is liberty to you. Not to me.

Do you think that forceful action against him was sanctioned by the Constitution or Bill of Rights?

Yes, I certainly do.

The way I see it, he was posing two entirely different things for contrast, not comparison. A negative right has no statement as a positive right; a positive right cancels out negative liberty.

Okay, then I will try my hand at it.

Negative liberty: Congress shall pass no law restricting freedom of religion.

Positive liberty: The people have the right to freedom of religion. This right may not be infringed upon by passage of law or individual or group action.

Is that enough of a majority to pass an amendment?

It needs more than simply "a majority" to pass an amendment, as you very well know.

If you and I disagree on the most fundamental assumptions about man and liberty, what do we share but territory?

I don’t know the answer to that. My instinct is to believe that disagreement is not as terrible as conflating disagreement with the worth of a person’s ideas. Isn’t it one of the central values of the America we both love that competing ideas can co-exist, and that third ways can be found? There is no need in a country in ours for everyone to think in lockstep, even on questions as basic as the definition of freedom. Maybe especially on the subject of freedom. I think it’s inevitable, and to be expected, that people, both as individuals and in groups, will disagree on what freedom is. Because in truth, I don’t really think freedom CAN be defined in one way only. Freedom to some people is security and personal safety. To others, it’s risk and uncertainty. To some, giving money to the government in the form of taxes is analogous, in a figurative sense, to be enslaved. To others, giving money to the government in the form of taxes is not what makes us slave or free; it’s how the priorities are decided — i.e., if they are decided democratically, allowing all segments of society to be part of the debate; or if they are decided by a small group of people behind closed doors. How can taxation be tyranny if the people themselves are deciding, via participation in the democratic process, which priorities are worth being taxed for?

I do realize the process is not as pure or simple as that, but the concept feels right to me.






 
Written By: Kathy
URL: http://libertystreetusa.blogspot.com/

 
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