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22 hours ago, falk said:

Interesting, do you not think that the enormity of the insurance market -- especially the health care sector -- in the economy warrants Court deference to Congress to interfere, citing the broad scope of the commerce clause in interstate commerce? For one, we can agree surely that everyone is in the insurance "market", whether one actually buys insurance or not. The practical considerations by the Court should then logically conclude that  -- because the commerce clause doesn't only allow for the regulation of active, transactional commerce -- Congress is merely trying to rectify the issue of a high number of uninsured Americans that individual states cannot address on their own. We should be able to agree that the movement of millions from uninsured to insured would dramatically affect interstate commerce. The decision of you or I to not purchase health insurance is a decision that has dramatic consequences on interstate commerce, so of course the Courts must defer to Congress on the regulatory scope of the matter.

I'm not so sure the commerce clause allows for the regulation of economic inactivity and I also don't think such a broad understanding of inter-state commerce is what was meant by the Founders.Some evidence that a narrow definition was originally meant can be found here

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22 minutes ago, NYrepublican said:

I'm not so sure the commerce clause allows for the regulation of economic inactivity and I also don't think such a broad understanding of inter-state commerce is what was meant by the Founders.Some evidence that a narrow definition was originally meant can be found here

Although I'm not at all arguing that Obamacare is perfect, or even anything other than a Frankenstein's Monster jabberwocky of a political compromise that is very inefficient, I believe in an area of this sort, the ruling should err on the side of the good and well-being of as many common people as possible. But, that is, unfortunately, not always, or even necessarily usually, the direction of leaning of the Supreme Court in these specific kinds of cases. I'm very much believing Lincoln is more and more being proven wrong in the modern day about just whom U.S. government is for, of, and by...

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1 minute ago, Patine said:

Although I'm not at all arguing that Obamacare is perfect, or even anything other than a Frankenstein's Monster jabberwocky of a political compromise that is very inefficient, I believe in an area of this sort, the ruling should err on the side of the good and well-being of as many common people as possible. But, that is, unfortunately, not always, or even necessarily usually, the direction of leaning of the Supreme Court in these specific kinds of cases. I'm very much believing Lincoln is more and more being proven wrong in the modern day about just whom U.S. government is for, of, and by...

I'm in favor of erring on the side of what the constitution actually says and means over utilitarian concerns.

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Just now, NYrepublican said:

I'm in favor of erring on the side of what the constitution actually says and means over utilitarian concerns.

The things is about that point-of-view is that, in many of the most contentious issues, the Founding Fathers couldn't possibly have foreseen or had any knowledge of these kinds of issues (huge medical bureaucracies, Internet applications of the First Amendment, big corporations raw power to cheat and defy government laws, mental health concerns around U.S. Presidents and other high officials, hacked elections, etc.), and thus significant innovation upon their even remotely possible intent and understanding is ABSOLUTELY NEEDED to deal with these issues competently.

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Just now, Patine said:

The things is about that point-of-view is that, in many of the most contentious issues, the Founding Fathers couldn't possibly have foreseen or had any knowledge of these kinds of issues (huge medical bureaucracies, Internet applications of the First Amendment, big corporations raw power to cheat and defy government laws, mental health concerns around U.S. Presidents and other high officials, hacked elections, etc.), and thus significant innovation upon their even remotely possible intent and understanding is ABSOLUTELY NEEDED to deal with these issues competently.

The discovery of the sensus literalis historicus would do far more for knowing how they'd rule in these issues that reading stuff in which probably wasn't intended does. For example, depending on how a public square was defined in their time social media corporations may fall under such a definition which as implications for the applicability of the first amendment.

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16 minutes ago, NYrepublican said:

The discovery of the sensus literalis historicus would do far more for knowing how they'd rule in these issues that reading stuff in which probably wasn't intended does. For example, depending on how a public square was defined in their time social media corporations may fall under such a definition which as implications for the applicability of the first amendment.

You could do this with anything, watch.

15 minutes ago, NYrepublican said:

depending on how a

full human being

16 minutes ago, NYrepublican said:

was defined in their time

 

black people

18 minutes ago, NYrepublican said:

may

not

19 minutes ago, NYrepublican said:

fall under such a definition which as implications for the applicability of the

right to vote.

It doesn't seem like a very good argument to me.

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1 minute ago, WVProgressive said:

 You could do this with anything, watch.

full human being

 

black people

not

right to vote.

It doesn't seem like a very good argument to me.

That's what constitutional amendments are for. Absent that we should go by the sensus literalis historicus in my opinion.

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2 minutes ago, NYrepublican said:

That's what constitutional amendments are for. Absent that we should go by the sensus literalis historicus in my opinion.

Alright, wouldn't "sensus literalis historicus " mean that because the founders meant "arms" as muskets and flintlock pistols, wouldn't that mean an assault weapons ban is constitutional. (this isn't an argument against guns by the way, I highly support an armed proletariat) Would the founders think corporations are entitled to the same legal rights as actual people.

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6 minutes ago, WVProgressive said:

Alright, wouldn't "sensus literalis historicus " mean that because the founders meant "arms" as muskets and flintlock pistols, wouldn't that mean an assault weapons ban is constitutional. (this isn't an argument against guns by the way, I highly support an armed proletariat) 

Obviously we need to make inferences from the sensus literalis historicus to modern day life but those inferences can't be shoehorned into the constitution.

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6 minutes ago, NYrepublican said:

Obviously we need to make inferences from the sensus literalis historicus to modern day life but those inferences can't be shoehorned into the constitution.

Although, the U.S. Constitution, well a stellar and revolutionary document and shining beacon in it's day and a definite defining force of governance afterwards, has fallen behind in actual effectiveness, adaptiveness, and ability to still, to this day, elect a government that truly represents it's people and gives them true political choice and has any enforceable accountability and transparency compared to many other (though not all others) First World Nations, because it is so chained to it's original intent to the point of almost viewing the Founding Fathers in the same light the old Prophets are viewed in Abrahamic Monotheism, which is the wrong point of view entirely for governance. Innovation, adaptiveness, and amendment being so damned difficult (de facto impossible in the modern political culture) has utterly crippled American political development, and caused it to limp behind many other modern contemporary First World governing systems.

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2 hours ago, NYrepublican said:

For example, depending on how a public square was defined in their time social media corporations may fall under such a definition which as implications for the applicability of the first amendment.

Also, this statement reiterates your false belief (and a false belief amazingly shared by many Americans, funny enough) that private corporations are subject to, and must respect, and be limited and restricted by, the First Amendment rights of their employees and consumers. Unfortunately, as nice as that would be, it's not the case. First Amendment rights are explicitly ONLY protections from GOVERNMENT action, and offer no protection at all from corporate and other private (including private citizens') actions and reactions.

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4 hours ago, NYrepublican said:

I'm not so sure the commerce clause allows for the regulation of economic inactivity and I also don't think such a broad understanding of inter-state commerce is what was meant by the Founders.Some evidence that a narrow definition was originally meant can be found here

Again, with due respect, the Court has determined beforehand -- in unanimous decisions as well no less -- that this interpretation of the commerce clause is inadequate. Now, don't get me wrong, a faulty and overly-broad interpretation of the clause can lead to examples of judicial activism practiced by both ends of the court, originalist and contextualist/purposivist. 

My qualm with your assessment is primarily based around the evidence that you've cited to back your claim. For obvious reasons, the Founding Fathers did not create a commerce clause to look at individual transactions subject to federal regulation. They obviously intended to create a clause that would provide the government with an ability to regulate on the whole, assessing the extent to which gross impacts on society may be changed based on the actions, emphasis on actions, of corporate or individualistic entities. So the misunderstanding seems to be that you would assess the clause based on a transactional understanding, while the majority of jurisprudential thought on the topic assesses it based on a understanding of aggregate impact.

Subsequently, based on the fact that we can clearly see that this idea is followed in the courts, the following determinations would logically conclude that -- because of the wide reach and breadth of economic issues -- the congress would be the primary agent of intervention, not the courts by mechanism of contract. If we assume that the clause deals with a transactional nature of understanding, then the courts would be effectively flooded with now very litigious, very specific areas of administrative law that Congress, with its "actual experience," should have the prerogative in dealing with, not the courts. 

If you disagree with that assessment, fine, but realize you effectively give an unfounded and unprecedented level of power to the courts instead. Why? Because the engaged lower standard by which economic issues are reviewed in courts typically defer to Congress as a result of the commerce clause and plenary powers. The political institutions were inherently the institutions that the Founding Fathers thought appropriate in dealing with economic matters, not the courts. So if you agree with the Founding Fathers, it would make sense to agree that a broad, existential understanding of the commerce clause does not in fact defer to a limited understanding by the courts, but rather an understanding of the "arena of experience" that Congress has in the matter, in deference to their expertise.

Essentially, my argument is that my interpretation of the commerce clause defers to the people in a way that the Founding Fathers would have preferred, given the lower standard of judicial review that is typically used in the consideration of financial decisions. Yours, while on face value giving way to business and the right of business association, actually constricts that said power because it limits the political process and shifts the arena of power more in the direction of an unelected court, possibly even giving way to some sort of modern Lochner era.  

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5 hours ago, Patine said:

 Also, this statement reiterates your false belief (and a false belief amazingly shared by many Americans, funny enough) that private corporations are subject to, and must respect, and be limited and restricted by, the First Amendment rights of their employees and consumers. Unfortunately, as nice as that would be, it's not the case. First Amendment rights are explicitly ONLY protections from GOVERNMENT action, and offer no protection at all from corporate and other private (including private citizens') actions and reactions.

I think some corporations may be subject to it nowadays given that Social Media is de facto the new public square.

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9 hours ago, NYrepublican said:

I think some corporations may be subject to it nowadays given that Social Media is de facto the new public square.

No, I'm pretty sure only government is explicitly and enforcably protected from. Then again, the obvious intent and wording of the Second Amendment was screwed up completely by some court ruling that seemed to lack an actual understanding of it's very brief text, when it was declared EVERY American citizen counted as their own whole "militia," and ALL Americans were automatically, in such a light, regardless of lifestyle, criminal background, mental health, or social responsibility, "well-regulated," which any fool whose at all literate in the English language and knows what the words "militia" and "well-regulated" and their common-sense application knows is either non-sensical or a gross and blatant politicized or populist distortion (probably the latter), but is NOT AT ALL the original intent or purpose of the text in any justifiable way.

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27 minutes ago, Patine said:

No, I'm pretty sure only government is explicitly and enforcably protected from. Then again, the obvious intent and wording of the Second Amendment was screwed up completely by some court ruling that seemed to lack an actual understanding of it's very brief text, when it was declared EVERY American citizen counted as their own whole "militia," and ALL Americans were automatically, in such a light, regardless of lifestyle, criminal background, mental health, or social responsibility, "well-regulated," which any fool whose at all literate in the English language and knows what the words "militia" and "well-regulated" and their common-sense application knows is either non-sensical or a gross and blatant politicized or populist distortion (probably the latter), but is NOT AT ALL the original intent or purpose of the text in any justifiable way.

To be fair it could be argued that "well-regulated" could mean well-regulated by the people who make up the militia. Also who's going to have the power to say who is and isn't able to own a gun, let's not forget that in the fifties and sixties people advocated gun control, when black people exercised their right bare arms as a means to defend against white hate mobs.

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2 hours ago, Patine said:

No, I'm pretty sure only government is explicitly and enforcably protected from. Then again, the obvious intent and wording of the Second Amendment was screwed up completely by some court ruling that seemed to lack an actual understanding of it's very brief text, when it was declared EVERY American citizen counted as their own whole "militia," and ALL Americans were automatically, in such a light, regardless of lifestyle, criminal background, mental health, or social responsibility, "well-regulated," which any fool whose at all literate in the English language and knows what the words "militia" and "well-regulated" and their common-sense application knows is either non-sensical or a gross and blatant politicized or populist distortion (probably the latter), but is NOT AT ALL the original intent or purpose of the text in any justifiable way.

Except, the federalist Papers back up the intentions of the Second Amendment.  Also, a militia is made up of able bodied citizens rather than a military force.

18 hours ago, Patine said:

Although, the U.S. Constitution, well a stellar and revolutionary document and shining beacon in it's day and a definite defining force of governance afterwards, has fallen behind in actual effectiveness, adaptiveness, and ability to still, to this day, elect a government that truly represents it's people and gives them true political choice and has any enforceable accountability and transparency compared to many other (though not all others) First World Nations, because it is so chained to it's original intent to the point of almost viewing the Founding Fathers in the same light the old Prophets are viewed in Abrahamic Monotheism, which is the wrong point of view entirely for governance. Innovation, adaptiveness, and amendment being so damned difficult (de facto impossible in the modern political culture) has utterly crippled American political development, and caused it to limp behind many other modern contemporary First World governing systems.

The American political system, while having moved in the negative direction in many ways, is why the US is so free compared to other countries (such as European countries which can imprison people for holding views that the government thinks is extreme).

1 hour ago, Harris/Ernst 2020 said:

Question? Can Presidents make changes to tax law by executive order?

If Congress gives the flexibility to the executive branch (which they do all too often these days) to be able to make certain changes as seen as fit, then the answer is yes under the current system.  Whether Congress can give away powers or not is another question (regarding constitutionality) that is glossed over.

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22 minutes ago, jvikings1 said:

is why the US is so free compared to other countries (such as European countries which can imprison people for holding views that the government thinks is extreme).

Yeah we have never ever done that, right.

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oops.jpg.0b6d8788157870da2784b31bb8101f15.jpg

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2 hours ago, jvikings1 said:

Except, the federalist Papers back up the intentions of the Second Amendment.  Also, a militia is made up of able bodied citizens rather than a military force.

The American political system, while having moved in the negative direction in many ways, is why the US is so free compared to other countries (such as European countries which can imprison people for holding views that the government thinks is extreme).

If Congress gives the flexibility to the executive branch (which they do all too often these days) to be able to make certain changes as seen as fit, then the answer is yes under the current system.  Whether Congress can give away powers or not is another question (regarding constitutionality) that is glossed over.

First, you keep quoting the Federalist papers as though they're Constitutionally-binding and have Constitutional-calibre force as reference material - not just as the commentary and opinions of a SPECIFIC GROUP of Founding Fathers that those papers actually are in truth. The Federalist Papers were not even anywhere unanimously supported among Founding Fathers - as I recall, Jefferson was NOT on board with the document as a whole and had a dissenting (and very long-winded) alternative he wrote.

As for the "freedom" you claim over other First World Nations, indeed the pictures from the Red Scare that @WVProgressive provided above, along the crackdowns on Vietnam War protesters, Civil Rights activists, the American Indian Movement, the Stonewall Riots, etc., and up to, and definitely including the vile (un)Patriot Act prove your argument holds absolutely no water there, but is an empty, pretencious, and baseless boast.

As for the relationship between Congress and the Executive, the long-term results will screw over the American people in the long-term regardless as long as Americans continue to de facto have no true political choice in their leaders and to have elections continue to be stolen, rigged, and corrupted right from the start, like so many emerging democracies and corrupt post-Cold War states in the Third World the Department of State likes to lecture on that phenomenon like to do themselves.

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4 hours ago, Patine said:

First, you keep quoting the Federalist papers as though they're Constitutionally-binding and have Constitutional-calibre force as reference material - not just as the commentary and opinions of a SPECIFIC GROUP of Founding Fathers that those papers actually are in truth. The Federalist Papers were not even anywhere unanimously supported among Founding Fathers - as I recall, Jefferson was NOT on board with the document as a whole and had a dissenting (and very long-winded) alternative he wrote.

While they might not be binding, that doesn't change the fact that the Federalist Papers offer direct insight into the thoughts and intentions of some of the major pushers of the ratification of the Constitution.

As for the "freedom" you claim over other First World Nations, indeed the pictures from the Red Scare that @WVProgressive provided above, along the crackdowns on Vietnam War protesters, Civil Rights activists, the American Indian Movement, the Stonewall Riots, etc., and up to, and definitely including the vile (un)Patriot Act prove your argument holds absolutely no water there, but is an empty, pretencious, and baseless boast.

Have mistakes been made in the past?  Yes, that is expected because we are all human.  However, the US is still much freer than other countries.  Whether that remains, we will see.  But, there are a large number of people (myself included) that are pushing back against reaches into individual freedoms regardless of which side it is coming from.

 

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@jvikings1

Quote

Have mistakes been made in the past?  Yes, that is expected because we are all human.

And we just seem to keep making that "mistake" again and again and again... maybe it's not a mistake.

Quote

However, the US is still much freer than other countries.  Whether that remains, we will see.  But, there are a large number of people (myself included) that are pushing back against reaches into individual freedoms regardless of which side it is coming from.

Are you truly free in America? Where we have more peopleless homes than homeless people. Where the good earth is rich and we've enough unused food to feed the world's hungry, yet we do not as it would not be profitable. Where we've handed our lives to corporations so they can poison us from cradle to grave, poison our mind with advertising, and our bodies with chemicals. Where power is concentrated in the hands of a select few. Where demagogues work to keep people ignorant of their fellow man, and use that hatred to maintain the systems of power already in place. Where work itself, an important aspect of human dignity and identity, is predicated upon wage theft, unpaid overtime, economic insecurity, unsafe working conditions, and crippling debt. Can we really call ourselves free?

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6 hours ago, WVProgressive said:

@jvikings1

And we just seem to keep making that "mistake" again and again and again... maybe it's not a mistake.

Are you truly free in America? Where we have more peopleless homes than homeless people. Where the good earth is rich and we've enough unused food to feed the world's hungry, yet we do not as it would not be profitable. Where we've handed our lives to corporations so they can poison us from cradle to grave, poison our mind with advertising, and our bodies with chemicals. Where power is concentrated in the hands of a select few. Where demagogues work to keep people ignorant of their fellow man, and use that hatred to maintain the systems of power already in place. Where work itself, an important aspect of human dignity and identity, is predicated upon wage theft, unpaid overtime, economic insecurity, unsafe working conditions, and crippling debt. Can we really call ourselves free?

I fully agree here, and I will add to the debate, @jvikings1, that a lot of the axis of American political rhetoric hinges on government regulation versus corporate and private enterprise as antagonistic forces, But that's a red herring - a fallacy, because, in the U.S., the big corporations and the government or mostly in bed, working to screw over the common people of the U.S. and the world for the enrichment of an ultra-elite. And, in the end, they don't really care at all about the hoi polio's freedoms or rights, and like to circumvent whenever they can get away with it - which is a disturbing amount of times. But hey, like so many Americans, you've always certainly been raised to believe what @WVProgressive and I are saying is "Commie-talk" and "Un-American" and should be dismissed immediately without much thought, and opposed rhetorically reflexively with canned and cliched responses.

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On 12/16/2018 at 9:53 PM, NYrepublican said:

The only reason Obamacare was upheld in 2011 in National Federation of Independent Business v.Sebelius is because the individual mandate was a tax.  By 5-4 the court held that the commerce clause didn't permit the passage of the individual mandate. If it's not a tax (and it's hard to say that a $0 fine is a tax) it'd have to be permitted as part of the commerce clause and that was already ruled unconstitutional.

It's also essentially nonexistent now that the fine is $0. It would be a pretty herculean leap of logic to suggest that the law is unconstitutionally forcing people to buy health insurance by threatening to tax them zero dollars if they don't. 

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On 12/16/2018 at 10:53 PM, NYrepublican said:

I'd be inclined to say not for the reason that most states don't allow purchasing health insurance across state lines hence there isn't much inter-state commerce on the health insurance market to even regulate. If most or all states allowed such purchases it'd be a different story.

One reason that states don't want to allow that is that it would undermine their own consumer protections. If State A has stronger protections than State B, insurers can just move their offices out of State A and sell to its residents exclusively from within the jurisdiction of State B.

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3 hours ago, Patine said:

I fully agree here, and I will add to the debate, @jvikings1, that a lot of the axis of American political rhetoric hinges on government regulation versus corporate and private enterprise as antagonistic forces, But that's a red herring - a fallacy, because, in the U.S., the big corporations and the government or mostly in bed, working to screw over the common people of the U.S. and the world for the enrichment of an ultra-elite. And, in the end, they don't really care at all about the hoi polio's freedoms or rights, and like to circumvent whenever they can get away with it - which is a disturbing amount of times. But hey, like so many Americans, you've always certainly been raised to believe what @WVProgressive and I are saying is "Commie-talk" and "Un-American" and should be dismissed immediately without much thought, and opposed rhetorically reflexively with canned and cliched responses.

That's where you are incorrect.  I completely agree that big business is in bed with government (which is how we get so much corporate welfare, regulations that are very harmful to small business, etc.).  It's up to the people to defend their rights and freedoms and all too often, many are not willing to do so.  However, there are still those who will fight against those forces which are hostile to liberty.

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