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Can You Answer These Constitutional Questions?
- Thread starter Robo
- Start date
In other words, you have no counter argument, because that is the truth.
SmarterthanYou
rebel
roberts, for one. Scalia as well. Alito also. they all have their political ideologies that sway away from the constitution.
DigitalDave
Sexy Beast!
YES! Where do I sign up!
I cant argue against you when all you said was that my argument was bullshit.
How do you counter that, ok ill try...
Uh, no, its not bullshit, your argument was bullshit. See if you can counter that!
1) The General Welfare clause could be trumped by just about anything. Then again the GW clause could trump just about anything. It depends on how the Court uses the balancing test.
2) The Court invented the balancing tests because they were presented with inconsistent portions of the Constitution. They had to come up with a way to deal with situations where rights and duties conflicted with each other... otherwise how are such issues going to get resolved.
SmarterthanYou
rebel
this is a usurpation of power that the constitution does not afford to the courts.
Ill give you a fake scenario..
Lets pretend the elected officials decided that banning Christian Churches was providing for the General Welfare of the people.
The Supreme would say... Well we have the governments duty to provide for the GW of the people and he legislature has done so in a way that conflicts with the First Amendment.
They would say, what evidence is there that banning Christian Churches actually provides for the GW of the people. If after reviewing the evidence the found that there was actually no rational basis for that claim they would be done and the law would be stricken.
If they found that there was a rational basis, then they wold have to balance that Constitutional power with the that limitation on Congress that prohibits the prohibiting the free exercise of religion.
It is clear that the overt restriction on such congressional power would trump any imagined gain attained by banning Christian Churches.
Now read the above and replace Christian Churches with Islamic Mosques and you will have a more realistic possibility.
Lets pretend the elected officials decided that banning Christian Churches was providing for the General Welfare of the people.
The Supreme would say... Well we have the governments duty to provide for the GW of the people and he legislature has done so in a way that conflicts with the First Amendment.
They would say, what evidence is there that banning Christian Churches actually provides for the GW of the people. If after reviewing the evidence the found that there was actually no rational basis for that claim they would be done and the law would be stricken.
If they found that there was a rational basis, then they wold have to balance that Constitutional power with the that limitation on Congress that prohibits the prohibiting the free exercise of religion.
It is clear that the overt restriction on such congressional power would trump any imagined gain attained by banning Christian Churches.
Now read the above and replace Christian Churches with Islamic Mosques and you will have a more realistic possibility.
So how would you suggest we resolve issues that come up regarding conflicting portions of the Constitution?
It is a power not prohibited of the Courts.
SmarterthanYou
rebel
in matters that come before the courts where the government has no power or authority as prescribed by the constitution, the only possible solution is to send it back to the state courts OR decide in favor of the citizen completely.
SmarterthanYou
rebel
the government (that would be the executive, legislative, AND judicial) only has the powers provided to it by the constitution. Anything not proscribed to the government by the constitution, then falls to the people.
I am talking about situations where the Government does have power, but that power conflicts with a right or a different power.
I don't think the above is an absolute. Even if it were, you are suggesting a government that would be paralyzed with an inability to do anything because people would allege conflicts over anything they did not like and if the government had no authority to examine those conflicts all laws or acts of government would fail.
SmarterthanYou
rebel
shall make no law, shall not be infringed, etc. etc. there is no conflict. the words of the constitution are very clear.
SmarterthanYou
rebel
10th Amendment provides the resolution for this.
Taichiliberal
Shaken, not stirred!
General Welfare
The concern of the government for the health, peace, morality, and safety of its citizens.
Providing for the welfare of the general public is a basic goal of government. The preamble to the U.S. Constitution cites promotion of the general welfare as a primary reason for the creation of the Constitution. Promotion of the general welfare is also a stated purpose in state constitutions and statutes. The concept has sparked controversy only as a result of its inclusion in the body of the U.S. Constitution.
The first clause of Article I, Section 8, reads, "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." This clause, called the General Welfare Clause or the Spending Power Clause, does not grant Congress the power to legislate for the general welfare of the country; that is a power reserved to the states through the Tenth Amendment. Rather, it merely allows Congress to spend federal money for the general welfare. The principle underlying this distinction—the limitation of federal power—eventually inspired the only important disagreement over the meaning of the clause.
According to James Madison, the clause authorized Congress to spend money, but only to carry out the powers and duties specifically enumerated in the subsequent clauses of Article I, Section 8, and elsewhere in the Constitution, not to meet the seemingly infinite needs of the general welfare. Alexander Hamilton maintained that the clause granted Congress the power to spend without limitation for the general welfare of the nation. The winner of this debate was not declared for 150 years.
In United States v. Butler, 56 S. Ct. 312, 297 U.S. 1, 80 L. Ed. 477 (1936), the U.S. Supreme Court invalidated a federal agricultural spending program because a specific congressional power over agricultural production appeared nowhere in the Constitution. According to the Court in Butler, the spending program invaded a right reserved to the states by the Tenth Amendment.
Though the Court decided that Butler was consistent with Madison's philosophy of limited federal government, it adopted Hamilton's interpretation of the General Welfare Clause, which gave Congress broad powers to spend federal money. It also established that determination of the general welfare would be left to the discretion of Congress. In its opinion, the Court warned that to challenge a federal expense on the ground that it did not promote the general welfare would "naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress." The Court then obliquely confided,"[H]ow great is the extent of that range … we need hardly remark." "[D]espite the breadth of the legislative discretion," the Court continued, "our duty to hear and to render judgment remains." The Court then rendered the federal agricultural spending program at issue invalid under the Tenth Amendment.
With Butler as precedent, the Supreme Court's interest in determining whether congressional spending promotes the general welfare has withered. In South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), the Court reviewed legislation allowing the secretary of transportation to withhold a percentage of federal highway funds from states that did not raise their legal drinking age to twenty-one. In holding that the statute was a valid use of congressional spending power, the Court in Dole questioned "whether 'general welfare' is a judicially enforceable restriction at all."
Congress appropriates money for a seemingly endless number of national interests, ranging from federal courts, policing, imprisonment, and national security to social programs, environmental protection, and education. No federal court has struck down a spending program on the ground that it failed to promote the general welfare. However, federal spending programs have been struck down on other constitutional grounds.
http://legal-dictionary.thefreedicti...eneral+Welfare
The concern of the government for the health, peace, morality, and safety of its citizens.
Providing for the welfare of the general public is a basic goal of government. The preamble to the U.S. Constitution cites promotion of the general welfare as a primary reason for the creation of the Constitution. Promotion of the general welfare is also a stated purpose in state constitutions and statutes. The concept has sparked controversy only as a result of its inclusion in the body of the U.S. Constitution.
The first clause of Article I, Section 8, reads, "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." This clause, called the General Welfare Clause or the Spending Power Clause, does not grant Congress the power to legislate for the general welfare of the country; that is a power reserved to the states through the Tenth Amendment. Rather, it merely allows Congress to spend federal money for the general welfare. The principle underlying this distinction—the limitation of federal power—eventually inspired the only important disagreement over the meaning of the clause.
According to James Madison, the clause authorized Congress to spend money, but only to carry out the powers and duties specifically enumerated in the subsequent clauses of Article I, Section 8, and elsewhere in the Constitution, not to meet the seemingly infinite needs of the general welfare. Alexander Hamilton maintained that the clause granted Congress the power to spend without limitation for the general welfare of the nation. The winner of this debate was not declared for 150 years.
In United States v. Butler, 56 S. Ct. 312, 297 U.S. 1, 80 L. Ed. 477 (1936), the U.S. Supreme Court invalidated a federal agricultural spending program because a specific congressional power over agricultural production appeared nowhere in the Constitution. According to the Court in Butler, the spending program invaded a right reserved to the states by the Tenth Amendment.
Though the Court decided that Butler was consistent with Madison's philosophy of limited federal government, it adopted Hamilton's interpretation of the General Welfare Clause, which gave Congress broad powers to spend federal money. It also established that determination of the general welfare would be left to the discretion of Congress. In its opinion, the Court warned that to challenge a federal expense on the ground that it did not promote the general welfare would "naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress." The Court then obliquely confided,"[H]ow great is the extent of that range … we need hardly remark." "[D]espite the breadth of the legislative discretion," the Court continued, "our duty to hear and to render judgment remains." The Court then rendered the federal agricultural spending program at issue invalid under the Tenth Amendment.
With Butler as precedent, the Supreme Court's interest in determining whether congressional spending promotes the general welfare has withered. In South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), the Court reviewed legislation allowing the secretary of transportation to withhold a percentage of federal highway funds from states that did not raise their legal drinking age to twenty-one. In holding that the statute was a valid use of congressional spending power, the Court in Dole questioned "whether 'general welfare' is a judicially enforceable restriction at all."
Congress appropriates money for a seemingly endless number of national interests, ranging from federal courts, policing, imprisonment, and national security to social programs, environmental protection, and education. No federal court has struck down a spending program on the ground that it failed to promote the general welfare. However, federal spending programs have been struck down on other constitutional grounds.
http://legal-dictionary.thefreedicti...eneral+Welfare
"Bullshit" was the conclusion of my argument. The body of my argument was this:
Now argue against that.
So, you are basically saying the intent of our founders was to not have a functioning government?
The states are functioning governments by themselves.