Dave's Verse

Just another instance of reality and history having a liberal bias: In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed. But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insur...

Richard Posner reads and critiques Scalia's new book: In United States v. Eichman, for example, he voted to hold a federal statute forbidding the burning of the American flag unconstitutional, and it was certainly a vote against his ideological grain. But it is a curious example for a textual originalist to give. The relevant constitutional provision—“Congress shall make no law abridging ... the freedom of speech”—does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes. “In their full context,” they assert, “words mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations.” That approach is inconsistent with interpreting “freedom of speech” to include freedom to burn flags, since the eighteenth-c...

I was advised by the blog Lawyers, Guns, and Money to read her opinion . I've started reading it even though I'm tired. And since she writes so clearly and effectively I wanted to quote some of the passages I am finding helpful: The Framers understood that the “general Interests of the Union” would change over time, in ways they could not anticipate. Accordingly, they recognized that the Constitution was of necessity a “great outlin[e],” not a detailed blueprint, see McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), and that its provisions included broad concepts, to be “explained by the context or by the facts of the case,” Letter from James Madison to N. P. Trist (Dec. 1831), in 9 Writings of James Madison 471, 475 (G. Hunt ed. 1910). “Nothing . . . can be more fallacious,” Alexander Hamilton emphasized, “than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a capacity to provide for fut...

The Iowa GOP must feel threatened by the Republicans in Tennessee for challenging them for the title of the most extreme and moronic group of conservatives. TP shows some of the ridiculous crap in their platform. This one stuck out to me: We support constitutional state sovereignty including nullification of federal oversteps. We disagree with Roe vs. Wade and Doe vs. Bolton as “settled law.” Under the Tenth amendment, these Supreme Court decisions have no authority over the states. Even as anti-federalist and strong supporters of state's rights, James Madison and Thomas Jefferson balked at the idea of nullification, which is the idea that a state can ignore a federal law. Jefferson was more open to the idea than Madison, having wrote favorably of the concept of nullification on at least one instance. But Madison was successful in talking Jefferson down from the idea. And while any flirtation with nullification was probably partly rooted in their personal philosophies, I thin...

I was reading a post on The Daily Dish about a 19 year old girl who is a massive over achiever who started a website in honor of her hero James Madison. My first thought was, wow, this girl is awesome. My second thought was that such a website is sorely needed. Click here for the site. Here is an exert: James Madison was perhaps the wisest of the Founding Fathers of the United States. As an author of its Constitution, The Federalist Papers and the Bill of Rights, he provided both the intellectual framework and rigorous analysis that were essential ingredients to organizing the nation's government. That's quite the resume. He didn't even want to right the Bill of Rights. He thought it was unnecessary. But he did so in order to get the anti-Federalists on board with the Constitution. Most people don't know much about Madison. I didn't know anything until I took an American Political Thought class as an undergrad at UT Knoxville. Actually, I got into political sc...