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0 pointsCWuestefeld12y ago0 comments

The US is a constitutional democracy

Actually, it's a constitutional republic.

But my real concern here is with the "constitutional" part, because most reasonable readers seem to agree that the PRISM surveillance violates the Constitution. Yet the federal government only seems concerned about Constitutionality when it suits them, (literally) laughing it off otherwise:

CNS: Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?

Pelosi: [Giggles] Are you serious? Are you serious?”

CNS: Yes, yes I am.

Pelosi: [Takes question from another reporter.]

So I'm concerned that the degree to which we're "consitutional" at all is becoming increasingly tenuous.

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jbooth12y ago

That's a really bad example, given the interstate commerce clause. Pelosi was laughing it off because damn near everybody, including the majority-conservative supreme court, agrees that regulating healthcare is regulation of interstate commerce, just like 1000s of other things that the federal government does which don't happen to be hot political footballs at the moment.

Conversely, most people that I've talked to agree that the NSA listening is very much not constitutional as per the 4th amendment. Even if you think it's constitutional, you have to do a lot of weasel wording about the definition of 'search and seizure'.

jacoblyles12y ago

It was actually a very close ruling (5-4) that hinged on whether "regulating interstate commerce" gave the power to the government to compel people to participate in commerce.

Personally, I disagree with the Wickard v. Filburn ruling that gave the power to the government to control what a farmer grows on his own land to feed to his own cattle under the "interstate commerce" power. The Constitution was distorted beyond any reasonable reading of the English language during the FDR administration and we never recovered.

The Republic is dead, FDR killed it. It's just taken us awhile to get used to living in a totalitarian state. Well, here we are.

dragonwriter12y ago

> It was actually a very close ruling (5-4) that hinged on whether "regulating interstate commerce" gave the power to the government to compel people to participate in commerce.

No, it didn't hinge on that point. The court split a number of different ways on different points in the case, but the rationale to which a majority signed on to for finding the individual mandate constitutional was the Taxing Clause, not the Commerce Clause.

There was an apparent 5-4 majority against finding for it under the Commerce Clause (the four conservative dissenters who would have struck it down plus Roberts), though there was no single opinion to that effect joined by any majority.

jbooth12y ago

Yeah, but the only reasons it was close were political. The individual mandate is well within the bounds of interstate commerce regulation when you compare it to some of your and my examples of existing jurisprudence that aren't politically controversial at the moment.

CWuestefeldOP12y ago

But the eventual SCOTUS decision did determine that it's not covered by the Interstate Commerce Clause. So your explanation of Pelosi's laugh may illustrate what was going on in her mind (as well as most other legal scholars at that date), but it also shows that they were wrong in the final analysis.

The reason that ObamaCare survived wasn't because of the Interstate Commerce loophole. It was because SCOTUS determined that it's a tax, and thus came in through the power of Congress to levy taxes.

Torgo12y ago

In my cynical opinion Roberts wrote his finding as a tax to prevent being responsible for the ruling that found you could use interstate commerce to argue the government could compel you to actually _engage in commerce_ so that your activity could then be regulated, because inactivity affects the market. Ginsburg wrote a pissy rebuttal defending the Commerce Clause interpretation. It's almost comical she had to write a dissent for a decision in her favor simply because she loves the omnipotentCommerce Clause so fucking much.

embolism12y ago

Ordering people to pay money to a government approved set of corporations is not regulating healthcare it's regulating the people and undermining property rights.

What's next? A selected group of 'food providers' that you have to pay because the government decides that they provide a better diet than people would choose from the free market?

jbooth12y ago

It's not new. You've got mandatory flood insurance from a selected group of companies, mandatory osha safety training from a selected group of companies, mandated accounting procedures that must be certified by selected people...

If you disagree with the law on principle, that's fine, it's certainly not a perfect solution.

But those are political objections. Based on how the interstate commerce clause has been interpreted for a wide variety of issues, it's not unconstitutional (for most working definitions of constitutional). That's why Pelosi laughed and moved on to the next question.

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dreamdu5t12y ago

Shhhh.. lest people be reminded that the government's claim to power is arbitrary.

glurgh12y ago

I don't know who these reasonable readers are given how few facts are available about PRISM surveillance - so few that it's next to impossible to reasonably conclude much about it.

As to the 'it's not a democracy, it's a republic' thing - it's just silly. So is taking the fact that some congressperson would not engage in a constitutional law debate with a reporter as an indication of the country's inexorable drift away from its constitution. Especially when you consider the question was answered - by the Supreme Court.

mongol12y ago

> The US is a constitutional democracy > Actually, it's a constitutional republic.

I don't understand this distinction. I read it from time to time on forums like these. US certainly is a democracy, in my (non-English) native language. And it is a republic. These are not exclusive.

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jbooth12y ago

jacoblyles12y ago

It was actually a very close ruling (5-4) that hinged on whether "regulating interstate commerce" gave the power to the government to compel people to participate in commerce.

The Republic is dead, FDR killed it. It's just taken us awhile to get used to living in a totalitarian state. Well, here we are.

dragonwriter12y ago

> It was actually a very close ruling (5-4) that hinged on whether "regulating interstate commerce" gave the power to the government to compel people to participate in commerce.

jbooth12y ago

CWuestefeldOP12y ago

The reason that ObamaCare survived wasn't because of the Interstate Commerce loophole. It was because SCOTUS determined that it's a tax, and thus came in through the power of Congress to levy taxes.

Torgo12y ago

embolism12y ago

Ordering people to pay money to a government approved set of corporations is not regulating healthcare it's regulating the people and undermining property rights.

What's next? A selected group of 'food providers' that you have to pay because the government decides that they provide a better diet than people would choose from the free market?

jbooth12y ago

If you disagree with the law on principle, that's fine, it's certainly not a perfect solution.

1 more reply

dreamdu5t12y ago

Shhhh.. lest people be reminded that the government's claim to power is arbitrary.

glurgh12y ago

I don't know who these reasonable readers are given how few facts are available about PRISM surveillance - so few that it's next to impossible to reasonably conclude much about it.

mongol12y ago

> The US is a constitutional democracy > Actually, it's a constitutional republic.

I don't understand this distinction. I read it from time to time on forums like these. US certainly is a democracy, in my (non-English) native language. And it is a republic. These are not exclusive.

j / k navigate · click thread line to collapse