NationStates Jolt Archive

I'm curious as to your point here. It was you that stated that strict construction was inconsistent with federal social programs and I asked you to explain.

You brought up Helvering v. Davis, 301 U.S. 619 (1937). You seem to think the mere existence of a Supreme Court case on a subject means that that subject is necessarily in reasonable dispute. My view would be some cases are more obvious than others. Whether the Supreme Court hears a case depends on a variety of factors.

In the case of Helvering, you are talking about a 70-year old case decided in a time when our view of the relationship between government and the economy was shifting. The two dissenters were notorious opponents of all New Deal programs, but even they didn't bother to author a dissenting opinion in the case. I find the majority opinion more than convincing that the 10th Amendment was not a serious impediment to Social Security.

Your statement that social welfare programs are "obviously" constitutional as expressions, I'm assuming, of the general welfare clause is contradicted by the first 150 years of American History and the reasonably involved high level litigation to create that precedent during the new deal era.

I don't understand the notion that just because the contention occurred in the past, that it is irrelevant. It wasn't obvious at the time, but now it is?

You may disagree with this assessment.

My position as a strict constructionist is simple. If the new deal was the will of the people, the effort to amend the constitution should have been undertaken as it was for prohibition, the income tax, senatorial direct election etc.

Furthermore, your main line of assault on my position seems to have an origin in the notion that the 14th amendment term liberty can only mean "all rights both enumerated and non-enumerated". I frankly don't know what liberty means in the context of the 14th amendment other than it must absolutely include actual physical liberty. But you apparently have clear insight into what all of the clauses in the constitution mean in full. I guess thats the difference between you and me. I find it odd that you don't understand this difference between us given your clairvoyance into matters of law.

Given that the court has the jurisdiction that you claim, what was the purpose of the 19th amendment? Couldn't the supreme court just determine that voting is one of the fundamental rights of all adult citizens in accordance with 9 and 14?

I understand all this, but what does any of it have to do with how many dissenters Helvering v Davis had or whether they wrote out their dissension?

I not only intended to answer the question explicited in the third sentence of your reply (which I quoted in full - so if you feel like it, go back and read what you wrote). I also referred to the first sentence of your reply, which stated that my main point was supporting your opinion, when clearly, as I have pointed out, it wasn't.
Also, if you really understood all that, why are you now asking about it again? The number of dissenters isn't that significant to me, apart from it showing that a considerable majority of 7 justices supported the majority opinion and only 2 justices dissented; a sign for an absence of much controversy in the decision. You misstated it in your original entry (the one introducing Helvering v Davis) and seemed to attach some significance to the fact that there were 3 dissenters. I corrected it. There's nothing more to it.
It is actually quite important whether they wrote dissenting opinions. As you have said yourself, a dissenting justice will write an opinion when he has a point to make. But these two justices didn't. They didn't voice any protest, which is quite unusual in dissenting justices who want to create an anchorpoint for latter debate. So, again, that's evidence for social security not being quite as controversial as you were making it out to be. End of story.

Fixed, tct
Only if you assume the legal system needs to be just.

"Broad" constructionists are just not delusional enough to believe that the founding fathers were psychics who all knew what would be necessary for harmonic life in the US in 2007.
Strict constructionists don't believe that, either. They simply see it as irrelevant.

What's necessary for "harmonic life" in the modern era is to be determined by modern legislators. They are permitted to amend the works of the founders.

Only if you assume the legal system needs to be just.

do I assume that the instrument of the justice system needs to be just? Well yes, I do.

You said that Nazi criminals could reasonably expect not to be punished for what they did.

Well: They murdered Jews. Of 118 members of my family, only 18 survived the Nazis. So you said the Nazis didn't have to expect being punished for murdering 100 great uncles, great aunts and great cousins of mine. Consider me deeply offended by what you said.
They can't have expected to be punished under the law because those war crimes laws didn't exist yet.

They should have expected angry and vengeful opposition, but that's beside the point.
You are specifically claiming in the above sentence that the trials were unfair because the Nazis didn't think they should have been punished by that tribunal using those laws.
No, I said they were unfair because the Nazis couldn't have reasonably expected to be punished under those laws (because those laws didn't exist yet). Nowhere did I refer to the Nazis wishes that they not be punished, or their belief that they were somehow exempt. You just made that up.

If I invent the atomic bomb, and then some international judicial council sanctions me for having violated the natural order of things by inventing the atomic bomb, even though there was no rule governing the atomic bomb previously, or even referring to a "natural order", that would be akin to what happened here. I can't have reasonably expected this judgement because the rules on which it was based were invented after I violated them.

The same is true of the Nuremburg trials. Whether the Nazis thought the laws should apply to them doesn't matter at all. I never even discussed their opinions.

do I assume that the instrument of the justice system needs to be just? Well yes, I do.
Now you're just presupposing the necessity of justice by renaming the system.

But let's accept that. Justice matters. What's justice? And how do you resolve conflicts between justice and fairness?

My proposed legal system doesn't have conflicts between justice and fairness because fairness is its sole guiding principle (mostly because I have some idea what fairness is, but justice is entirely unknown to me because no one ever answers the question when I ask "What's justice?").

I like the 9th amendment. It says I have unenumerated rights.
It does no such thing.

Given that the court has the jurisdiction that you claim, what was the purpose of the 19th amendment? Couldn't the supreme court just determine that voting is one of the fundamental rights of all adult citizens in accordance with 9 and 14?

That's actually a good question. I always thought of the 19th amendment as redundant after the 14th amendment. Without wanting to imply that these have anything to do with the actual legal situation in US constitutional law, I can think of a few ways to make sense of it.

1) Voting is not a right, but a privilege. It's not like every resident in the US can vote, though every resident in the US - US citizen or not - enjoys the freedoms guaranteed by the constitution. Giving the vote to the 18 year old but not to the 17 year old still feels arbitrary to me. And look at Bush v Gore 2000: if there even is a right to vote, it's not really that important, apparently.

2) Women were not considered fit to vote before the 19th amendment. The equal protection clause was not violated as there was "just" or "reasonable" cause for the unequal treatment of men and women.
Obviously, I don't think like that; but I believe a lot of people did, well into the 20th century. In France, the suffrage was extended to women only in 1944. In Germany, women had the vote in 1918. Switzerland granted women the right to vote in 1971, and the last canton to follow suit was Appenzell Innerrhoden in 1990 (as ordered by the Federal Court of Switzerland and against the express will of the canton's electorate!).

3) No case ever made it to court. (I haven't looked this up.) Or the courts were full of misogynist men reluctant to extend the vote to women, no matter what the law said.

4) It took the courts a very long time to figure out what equal protection actually means. Just think of how long "Separate, but equal" was allowed to stand.

These are all just possible explanations. Maybe you can think of some more ways to explain it. I don't think it had to do with strict construction necessarily.

They can't have expected to be punished under the law because those war crimes laws didn't exist yet. *snip*

It's still talking. Why is it still talking? :rolleyes:

It doesn't matter how you label it. Murder is a crime, genocide is a crime, they have been for ages, even in Germany, and you shouldn't need a war crimes tribunal to tell you that.

But, please, go, find something morally repugnant but not yet outlawed for yourself to do so you can bask in the glory of reasonably expecting not to be punished. Just don't bother us anymore. It's annoying, and you're embarassing yourself.

It's still talking. Why is it still talking? :rolleyes:

<snip>
I've been asking that for months. :D

Llewdor's continued insistence is especially ridiculous considering that we (or more properly, you) have already explained that the Nazis' actions/policies were already illegal under German law, so the prior non-existence of the particular list of charges prosecuted by the Nuremburg tribunal is totally beside the point. They knew they were doing something wrong by their own nation's and culture's standards, so it was not reasonable for them to think they would not get punished for it, if anyone ever got the power to punish them for it (i.e. if they lost the war). And their behavior before, during and after the war shows clearly that they knew it.

As always, Llewdor argues against the facts, fails, but refuses to stop arguing (and failing). Get used to it. He is so unwavering, I'm starting to suspect he might be a macro, instead of a human being.

Llewdor's continued insistence is especially ridiculous considering that we (or more properly, you) have already explained that the Nazis' actions/policies were already illegal under German law, so the prior non-existence of the particular list of charges prosecuted by the Nuremburg tribunal is totally beside the point.
But they weren't tried under German law. They were tried under the new War Crimes laws, which didn't exist until after the war.

If you want to punish them because they're evil, then make that explicit and deter future evil acts. What the Nuremburg trials actually did was create an entirely extraneous and far-reaching pseudo-legal system specifically top punish some people who could have already been punished under existing systems of law.

But they weren't tried under German law. They were tried under the new War Crimes laws, which didn't exist until after the war.

If you want to punish them because they're evil, then make that explicit and deter future evil acts. What the Nuremburg trials actually did was create an entirely extraneous and far-reaching pseudo-legal system specifically top punish some people who could have already been punished under existing systems of law.
For the 18th time, this is irrelevant. Not only is it morally repugnant, it is also the most pointlessly irrelevant nonsense possible on the topic.

THEY knew what they were doing was wrong because of the prior German culture/system they grew up in. THEY knew other people did not like what they were doing. THEY knew that if they lost the war, they would be under the power of their enemies, who would likely take revenge.

So your idiotic claim that there was no way they could reasonably have expected to be punished for what they did is bullshit. Common sense dictates that they must have expected it under the circumstances, and history shows (in the Nazis' own records) that they DID expect it. The precise details of how they were punished have nothing to do with whether they should have expected to be punished. They should have expected it, and indeed, they did expect it.

So not only do you fail on logic, you are also completely defeated by the facts. You posited a situation that simply never existed so that you can argue a line of thought that is bullshit, from start to finish. From your initial proposition, through all your arguments and proofs, and finally to your so-called historical examples, you are spinning fantasy tales.

EDIT: You started this irritating little exercise in "Watch Llewdor Make Himself the Center of Attention Forever and Ever" by admitting your total ignorance of US law and the US Constitution. Since that long ago day, you have not said one single thing that has shown anything less than total ignorance of the facts you are trying to argue. This is the definition of "you don't know what you are talking about." I'm just pointing this out in the vain hope that it might come to mean something to you someday.

I've been asking that for months. :D *snip*

What's bad is that Lewdor simply doesn't understand how incredibly hurtful his ignorance is, and how painful it is to have to read the same unbearable stuff over and over again in this thread.
What's worse is that I have the feeling Lewdor is applying "nulla poena sine lege praevia" (no punishment without a pre-existent law banishing the crime) to procedural law, which it simply doesn't apply to. And that's only if we assume that Lewdor has any knowledge of law whatsoever, dilletante as it may be. If he is actually talking about the procedural framework of the Nuremberg war crimes tribunal, again, I recommend that he should read a treatise on International Public Law, or maybe a general Introduction to Law. He will find that there is no reasonable expectation in the absence of a court having jurisdiction to decide on your criminal responsibility. Basically, there is no reasonable expectation in getting away with murder or genocide.
What's worst is that he's not talking about infractions like "hit and run", DUI or jay-walking, or even bigamy (if that's a crime at all in your respective countries), but about murder and genocide committed by rulers against a part of their own people (or electorate, since the Nazis most certainly had a distorted view of "the people"). It's simply demented to even theoretically, even for a moment's worth consider that the Nazis could have ignored that what they were doing was criminal. And, as has been pointed out including quotations from historical evidence, they were fully aware of their actions being criminal.

What's bad is that Lewdor simply doesn't understand how incredibly hurtful his ignorance is, and how painful it is to have to read the same unbearable stuff over and over again in this thread.
What's worse is that I have the feeling Lewdor is applying "nulla poena sine lege praevia" (no punishment without a pre-existent law banishing the crime) to procedural law, which it simply doesn't apply to. And that's only if we assume that Lewdor has any knowledge of law whatsoever, dilletante as it may be. If he is actually talking about the procedural framework of the Nuremberg war crimes tribunal, again, I recommend that he should read a treatise on International Public Law, or maybe a general Introduction to Law. He will find that there is no reasonable expectation in the absence of a court having jurisdiction to decide on your criminal responsibility. Basically, there is no reasonable expectation in getting away with murder or genocide.
What's worst is that he's not talking about infractions like "hit and run", DUI or jay-walking, or even bigamy (if that's a crime at all in your respective countries), but about murder and genocide committed by rulers against a part of their own people (or electorate, since the Nazis most certainly had a distorted view of "the people"). It's simply demented to even theoretically, even for a moment's worth consider that the Nazis could have ignored that what they were doing was criminal. And, as has been pointed out including quotations from historical evidence, they were fully aware of their actions being criminal.
Actually, I suspect that, whether not he actually knows how reprehensible his remarks are, Llewdor does not care one way or the other. I have complained of his behavior more than once and said in another thread that I would not do it again because I don't want to spend more time talking about him than about real topics. Please check your TG, though.

Your statement that social welfare programs are "obviously" constitutional as expressions, I'm assuming, of the general welfare clause is contradicted by the first 150 years of American History and the reasonably involved high level litigation to create that precedent during the new deal era.

I don't understand the notion that just because the contention occurred in the past, that it is irrelevant. It wasn't obvious at the time, but now it is?

You may disagree with this assessment.

Curious. What caselaw are you referring to from this first 150 years of American History?

You may wish to play games with my use of the term "obvious." You may remember I used that phrase to challenge your assumption that social programs were necessarily contrary to the Constitution. You have never justified that assumption. Instead, you've jumped on the question of how obviously wrong you are. And the best you appear to be able to do is argue that the point was once contested, therefore it is contestable. That is a long way from carrying your point.

My position as a strict constructionist is simple. If the new deal was the will of the people, the effort to amend the constitution should have been undertaken as it was for prohibition, the income tax, senatorial direct election etc.

And this is based on strict construction of what exactly? It is all very well to say you disagree with the New Deal (even if that is a rather ridiculous position), but it is altogether different to hold that the New Deal required amendment of the Constitution.

Furthermore, your main line of assault on my position seems to have an origin in the notion that the 14th amendment term liberty can only mean "all rights both enumerated and non-enumerated". I frankly don't know what liberty means in the context of the 14th amendment other than it must absolutely include actual physical liberty. But you apparently have clear insight into what all of the clauses in the constitution mean in full. I guess thats the difference between you and me. I find it odd that you don't understand this difference between us given your clairvoyance into matters of law.

How can you argue for strict construction of the term "liberty" when you don't know what that means?

You appear to be avoiding the question of whether the 14th Amendment makes the Bill of Rights applicable to the states (or, in other words, liberty includes at least enumerated rights)? You appear incapable of making a logical distinction between protection of enumerated rights and unenumerated rights -- especially in light of the 9th Amendment? Other than snide comments about my clairvoyance, your argument seems to be "Nuh, uh. I don't know what it means, but it doesn't mean that. Why? Because I said so."

As for your snide comments about my knowledge of the law, I have studied the subject for many, many years. So, yes, I think I have some insight into the meanings of the phrases of the Constitution. This insight is informed by the opinions of the Supreme Court.

Given that the court has the jurisdiction that you claim, what was the purpose of the 19th amendment? Couldn't the supreme court just determine that voting is one of the fundamental rights of all adult citizens in accordance with 9 and 14?

The Supreme Court could have, and should have, held that women had the right to vote -- under the Equal Protection Clause, if not under the Due Process Clause. Unfortunately, the Court took the view that depriving women of the right to vote did not violate the 14th Amendment. Cf., e.g., Minor v. Happersett (http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=88&invol=162), 88 U.S. (21 Wall.) 162 (1875) (holding that the immunities and privileges clause did not confer the right to vote to women).

The fact that the 19th Amendment was politically necessary and expedient doesn't mean it was legally necessary.

Again, you seem stuck on the view of what the 14th Amendment must not mean because you find such meaning inconvenient and not because you can provide a justification for such meaning.

*snip* Please check your TG, though.

Again, thanks for the TG. It's much appreciated, and I completely concur. ;)