The Contrasting Psychologies OWS and the Tea Party

[Liberty1]

It's called enumerated powers. Suck it up.

[Scooter]

One of them being 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." Thank you for making my point for me.

[Lord Jim]

Let me ask you a question Dave...

Do you believe that a President has the Constitutional authority to deploy American forces into a conflict without a formal Declaration Of War?

I ask, because this is one of those "conversion points" between the Buchananites and the McGovernites that I have found most noticeable....

The neo-isolationist faction on The Right steadfastly maintains the belief that Presidents do not have that authority, as does the pacifist-defeatist faction on The Left....

They hold to this view despite the fact that the courts have held over and over and over again,in case after case, for decades, that this is not required....

Are you among those who believes that any military action undertaken by a President is Un-Constitutional, absent a declaration of war?

[Liberty1]

One of them being 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

Sorry, you made my point.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote (not provide for) the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America

[Gob]

pro·mote

verb (used with object), -mot·ed, -mot·ing.
1. to help or encourage to exist or flourish; further: to promote world peace.
2. to advance in rank, dignity, position, etc. (opposed to demote).
3. Education. to put ahead to the next higher stage or grade of a course or series of classes.
4. to aid in organizing (business undertakings).
5. to encourage the sales, acceptance, etc., of (a product), especially through advertising or other publicity.

[Lord Jim]

Lib, I'm afraid you've got the wrong end of the stick here...

You're quoting from the Preamble to the Constitution, (which I assume you know is not actually a part of the Constitution and has no force of law)

Scooter is referring to Article I Section 8 of the Constitution, which reads in part:

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

[Scooter]

Um, you do realize that what I quoted comes directly from Article I, Section 8, right? You know, right there with all of the other enumerated powers. Are you so intent on trying to make something of the fact that the Preamble uses "promote" that you were completely clueless that the enumerated powers of Congress say "provide".

A distinction, btw, that makes perfect sense. The Preamble is an explanation of the purpose of the Constitution. The Founders enacted the Constitution to, among other things, "promote" the general welfare. And one of the ways they did that was by giving Congress the power to "provide" for the general welfare.

[Liberty1]

Um, you do realize that what I quoted comes directly from Article I, Section 8, right? You know, right there with all of the other enumerated powers. Are you so intent on trying to make something of the fact that the Preamble uses "promote" that you were completely clueless that the enumerated powers of Congress say "provide".

Yes, you caught me, I automatically thought of the pre-amble.

So I am once again forced to go the the intent of the general welfare clause which Madison discussed in Federalist #41.

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. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are ``their common defense, security of their liberties, and mutual and general welfare. '' The terms of article eighth are still more identical: ``All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,'' etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.

But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

[Scooter]

That's fine, but Madison himself stated that the Federalist Papers were not an authoritative source of interpretation. He was writing to make a case for the ratification of the Constitution, and to provide a sort of debater's handbook to advocates for the Constitution during the ratification process. He is making an argument, not providing objective analysis, and like any good advocate he structures his argument in order to convince his audience. In this case, he was trying to address the objections of those who believed the general welfare clause to grant too much power to the federal government. He proffers a ridiculous strawman of what it would mean to read a grant of power into the clause (basically that Congress could legislate on anything and everything). He then provides a series of unconscionable examples of how this alleged omnipotence could be used, the message being that since no one could have possibly intended to give Congress the power to do all of these outrageous things, it must mean that the clause grants no additional power at all. This is, of course, a false dilemma; there are supportable intermediate positions between the two extremes. But acknowledging that would not have served his purpose, which was to convince people that there wasn't anything to worry about so that they would support ratification.

[Liberty1]

OWS vs the Tea Party by the numbers

[dales]

Source?

[Lord Jim]

In all fairness, the cost figure for the Tea Party can't possibly be correct....

They've held numerous large rallies around the country over the past several years, and even if they were peaceful, and even if they they didn't leave a lot of trash, localities are still going to incur costs for providing a police security presence and clean up for large public events...no matter how orderly they might be.

[dgs49]

scooter, scooter, scooter, please stop.

The argument over the "general welfare" clauses, both Preamble and Article I is OVER. Done. Settled law. Finished. Complete. It is no longer in dispute, if it ever was. The Supreme Court of the United States has NEVER cited either instance of that expression (Preamble or Article I) to justify Congressional spending outside Article I, Section 8.

It is too obvious for words that your reading of the first sentence of Section 8 RENDERS THE ENTIRE REMAINDER OF SECTION 8 MEANINGLESS! Not to mention the Tenth Amendment. What is the point of listing specific ennumerated powers if the Congress already has the power to do anything it wants to promote the "general welfare"? Hence, your point - while often raised among the ignoranti - is just that: an argument that appeals to people who don't know what the fuck they are talking about. It's like the "common knowledge" that eating low-fat foods will prevent you from getting fat. It is well-known, but provably false.

OBVIOUSLY, the Supreme Court has found innumerable ways of getting around the clear restraints of the Tenth Amendment, and there are people who must be considered "constitutional scholars" who can "prove" that it doesn't really mean what it says, but NONE of them bases their argumens on the "general welfare" clauses, because it simply doesn't work.

Jimmy, the President, as Commander in Chief of the Armed Forces, has the power, in emergency situations, to dispatch U.S. forces to protect the U.S., its citizens, or its vital interests from imminent danger. S/he does not have power to declare war, to participate in someone else's war (Libya), or to place the U.S. in a position that makes war inevitable (e.g., launch an aggressive first strike).

More importantly, the President does not have the Constitutional authority - even as CIC - to take aggressive military action for political or diplomatic purposes (e.g., to order an assassination of a foreign government official), without express consent (and funding) from Congress. Though I am not an expert on the subject (obviously), I believe the War Powers Act tries to balance the power of the Presidency and the prerogatives of the Peoples' Representatives (Congress) in a way that makes sense in an era where a Declaration of War has become a bit of an anachronism. In sum, the President is [supposed to be] on a rather short leash. As s/he should be.

[Scooter]

The argument over the "general welfare" clauses, both Preamble and Article I is OVER. Done. Settled law. Finished. Complete. It is no longer in dispute, if it ever was. The Supreme Court of the United States has NEVER cited either instance of that expression (Preamble or Article I) to justify Congressional spending outside Article I, Section 8.

You're quite correct. The argument over the scope of Congress's taxing and spending authority is over. It was decided in Butler v. U.S.. Except that, since you didn't bother to read the case the first 25 times you made this assertion and had the case brought to your attention, the Court came to a completely opposite position:

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. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

It is too obvious for words that your reading of the first sentence of Section 8 RENDERS THE ENTIRE REMAINDER OF SECTION 8 MEANINGLESS! Not to mention the Tenth Amendment. What is the point of listing specific ennumerated powers if the Congress already has the power to do anything it wants to promote the "general welfare"?

Because I am not arguing that the clause gives Congress the "the power to do anything it wants" to provide for the general welfare. The clause gives Congress the power to TAX and to SPEND to provide for the general welfare. It is you who are reading "the power to do anything it wants" into it in order to argue against a strawman.

To use as example a number of programs you consider unconstitutional - Social Security, Medicare, welfare benefits, etc. Each of these programs requires only the power to tax and to spend - to collect the respective taxes from all those obligated to pay them, and to distribute the benefits to those entitled to receive them. Every power that Congress has asserted for itself in all of the relevant legislation serves one or both of these purposes. They are, therefore, constitutional under Article I, Section 8.

So then, why the enumerated powers? Because clearly some functions of government necessitate powers other than the ability to tax and spend. You can't establish and regulate a currency solely by taxing and spending; you need the power to make the currency legal tender and to protect it against counterfeiting, hence the enumerated powers. Naturalization and bankruptcy law have nothing to do with taxing and spending; you need the authority to regulate the process governing them, hence the enumerated powers. Creating a criminal code has nothing to do with taxing and spending; you need the authority to define certain acts as crimes, hence the enumerated power. Raising and managing armed forces involves more than taxing and spending; you need the power to call for the miltia, to conscript, to establish a code of military discipline, hence the enumerated powers.

So there are three basic ways of interpreting Section 8. One is your way, to claim that the general welfare clause has no meaning, and that the Founders just thought it would sound nice. Another way is the strawman you claim to be the position of those who would say that the general welfare clause is in itself a grant of power, that it gives Congress the power to do everything and that the remaining enumerated powers are nothing but redundancy. Since reasonable and logical constitutional analysis eschews interpretations that certain clauses are either ineffective or redundant, the correct interpretation must be one that includes neither of these, that is, the interpretation I have just described: one in which Congress has clearly defined and limited powers (taxation and spending) to achieve any object congruent with the common defence and/or the general welfare of the United States, and is also granted broad and undefined additonal powers besides taxation and spending, in order to achieve a clearly defined and limited list of objects. This is the only interpretation that both (a) gives effect to every clause in the section and (b) does not ascribe the same meaning to more than one clause.

[Andrew D]

The radical right never stops distorting the Constitution.

Evidently, they cannot help themselves. They are so wedded to what they think that the Constitution should say that they deliberately blind themselves to what the Constitution does say.

The debate over the meaning of Article I's General Welfare Clause is as old as the Constitution itself. It was purportedly settled by the Supreme Court in United States v. Butler, 297 U.S. 1 (1936) and Helvering v. Davis, 301 U.S. 619 (1937). In Butler, the Court held that the General Welfare Clause is limited only by the qualification that "the powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare." (297 U.S. at p. 67.) In Helvering, the Court held that it will reverse Congress only if "the choice is clearly wrong, a display of arbitrary power." (301 U.S. at p. 640.)

But the Supreme Court has reversed itself before. (Contrast, e.g., Plessy v. Ferguson against Brown v. Board of Education.) And if the radical right has its way, the Supreme Court may reverse itself again.

Of the two significant sides of the argument, the side articulated by Scooter is the side that has prevailed, and the side articulated by dgs49 is the side that has lost. But the radical right will not let go of its losing argument.

And the position of the radical right has not merely lost lately: It has always lost. It lost as early as 1791 (which is about as early as any debate over the Constitution, which was ratified in 1789, can get). It kept on losing from then through the whole of the 19th century. And in the 20th century, it kept right on losing -- losing so badly that in Butler, the right-wing Court of 1936 rejected the very argument which the radical right makes today.

In short, the radical right's twisted interpretation of the Constitution has never prevailed.

The radical right is like a rabid pitbull: The total annihilation of its arguments do not matter to it. It pertinaciously clings to its distorted view of the Constitution, and nothing short of smashing its jawbone will release its grip.

Those on the radical right love to cite Jefferson and Madison as if their opinions should be taken as gospel. But they ignore the opinion of one of the most important Framers of the Constitution: Alexander Hamilton.

In other words, they cherish the opinions of those who lost the argument then and are still losing it now, but they ignore the opinions of those who won the argument then and are still winning it now. And they have the temerity to claim that they are expressing the "real" meaning of the Constitution.

As I posted some months back:

The Constitution says:

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; ....

(U.S. Const., Art. I, Sec. 8 (emphasis added).)

In another constitutional debate which Jefferson lost, he argued that (as he put it later):

Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.

(Letter to Albert Gallatin, 16 June 1817.)

Alexander Hamilton, on the other hand, argued that:

The National Legislature has express authority "To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare" with no other qualifications than that "all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that "no tax or duty shall be laid on articles exported from any state." These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and "general Welfare." The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this--That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

(Report on Manufactures, 5 December 1791 (italics omitted).)

Hamilton won. As Joseph Story (Supreme Court Justice 1811-1845) put it:

A power to lay taxes for any purposes whatsoever is a general power; a power to lay taxes for certain specified purposes is a limited power. A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them. If the defence proposed by a tax be not the common defence of the United States, if the welfare be not general, but special, or local, as contradistinguished from national, it is not within the scope of the constitution. If the tax be not proposed for the common defence, or general welfare, but for other objects, wholly extraneous, (as for instance, for propagating Mahometanism among the Turks, or giving aids and subsidies to a foreign nation, to build palaces for its kings, or erect monuments to its heroes,) it would be wholly indefensible upon constitutional principles. The power, then, is, under such circumstances, necessarily a qualified power.

(2 Commentaries on the Constitution (1833) sec. 923.)

Jefferson also contended that:

For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. [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.

(Opinion on the Constitutionality of a National Bank, 15 February 1791 (italics omitted).)

That is a rather a bizarre argument: It amounts to saying that even if Congress has the power to lay and collect taxes for the general welfare, it does not have the power to spend for the general welfare the taxes which it has collected for the general welfare. What else is Congress supposed to do with those taxes once it has collected them? As Story observed, "if congress is authorized to lay taxes for such purposes, it would be strange, if, when raised, the money could not be applied to them. That would be to give a power for a certain end, and then deny the end intended by the power." (2 Commentaries on the Constitution, sec. 920.)

The Hamiltonian interpretation of the General Welfare Clause was officially adopted by a conservative Supreme Court in United States v. Butler, where the Court held that the General Welfare Clause is limited only by the qualification that "the powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare." (297 U.S. 1, 67 (1936).) That, of course, is what Hamilton had said -- that "the object to which an appropriation of money is to be made [must] be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot."

There are many people, of whom dgs appears to be one, who wish that Jefferson's view had prevailed. But it did not.

Moreover, the "discretion belongs to Congress" to determine what is in the general welfare, and the Supreme Court will reverse Congress only if "the choice is clearly wrong, a display of arbitrary power." (Helvering v. Davis, 301 U.S. 619, 640 (1937).) Again, that is what Hamilton had said: "It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper."

And Congress evidently has never crossed that line, because "[n]o Taxing and Spending Clause statute has ever been invalidated because it did not serve the general welfare ...." (The Oxford Companion to the Supreme Court of the United States (2d ed. 2005) at p. 1005.) Your side lost the debate over the General Welfare Clause a long time ago. Live with it.

But the radical right refuses to disabuse itself of its ignorance of the Constitution. It keeps coming back with the same old crap.

Fortunately, those of us who actually grasp the meaning of the Constitution -- the meaning set forth in its very words, no matter how much the radical right attempts to persuade people that the Constitution does not mean what it says -- have been able to prevent the radical right from imposing its anti-constitutional view on America.

All of us have good reason to hope that that continues.

[dgs49]

Interesting points, and as I've acknowledged before, my side of the argument clearly has lost.

But again, the question is, if you want to understand what a document means, do you look to the document, or to what a group of partisans decided it meant in the 1930's despite a hundred and-some-odd years of contrary understanding? I think it's more rational to look at the document itself. And looking within the "four corners" of the Constitution, clearly I'm right.

It is not without reason that Andrew fears that some Supreme Court in the future might throw out much of what has been read into the Constituiton over the past 80 years; much of it is patent nonsense. Notice how when Dems in the Senate interview appellate court candidates, they demand to know that the nominee will be faithful to PRECEDENT, and the Republicans want assurance that the nominee will be faithful to the Constitution. This actually say it all.

I wonder, Andrew, if there are any Conservatives or Libertarians whom you do NOT consider part of the "Radical Right." Or conversely, is the use of that stupid expression just your not-too-subtle way of trying to marginalize those with whom you disagree?

[Lord Jim]

Dale, is this your doppel ganger?

http://www.sfgate.com/cgi-bin/object/ar ... 445695.jpg

You know it's funny...

I remember a time when Dale's political views were not very different from my own...

But he seems to becoming Steveish in his old age...

I hope it's not catching...

[Lord Jim]

I wonder, Andrew, if there are any Conservatives or Libertarians whom you do NOT consider part of the "Radical Right." Or conversely, is the use of that stupid expression just your not-too-subtle way of trying to marginalize those with whom you disagree?

Well, if you want to bandy words with a man who has made himself an embarrassing, intellectually dishonest troll, I suppose that's your business...

The only one he has "marginalized" is himself....

Look around...

How many people do you see responding to him nowadays when he pokes his head out of his troll hole?

[dales]

Dale, is this your doppel ganger?

http://www.sfgate.com/cgi-bin/object/ar ... 445695.jpg

You know it's funny...

I remember a time when Dale's political views were not very different from my own...

But he seems to becoming Stevish in his old age...

I hope it's not catching...

My social circle now includes many who have lost much during the past 3 years.

ETA: People my age (50's and beyond) have had one helluva time finding gainful employment, lost their homes, etc.

East CoCo was particularly hard hit by the housing bust.

My political views have always been malleable and not etched in granite, I've always tried to get the big picture, and what i see now is a widening gulf between the struggling (and vanishing "middle class") and those making BIG BUX at their expense.

It's now wonder that OWS is growing, too many Americans who "played by the rules" got screwed over royally.

[Scooter]

I think it's more rational to look at the document itself.

Except that you don't. That is to say, you don't look at the whole document. You don't the implication of the words "provide for the common defense and the general welfare", so you simply pretend they have no meaning. Poof. They no longer exist. Because that is the only way your interpretation makes sense.

And looking within the "four corners" of the Constitution, and cutting a hole out of the middle of it like a doughnut, clearly I'm right.

Fixed that for you.